Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band, 57750-57851 [E8-23045]
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Federal Register / Vol. 73, No. 193 / Friday, October 3, 2008 / Proposed Rules
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Parts 27 and 90
[WT Docket No. 06–150; PS Docket No. 06–
229; FCC 08–230]
Service Rules for the 698–746, 747–762
and 777–792 MHz Bands, Implementing
a Nationwide, Broadband,
Interoperable Public Safety Network in
the 700 MHz Band
Federal Communications
Commission.
ACTION: Proposed rule.
jlentini on PROD1PC65 with PROPOSALS2
AGENCY:
SUMMARY: In this document, the
Commission seeks comment on its
tentative conclusions and proposals on
how the Commission might modify its
rules governing the public/private
partnership, the D Block licensee, and
the public safety broadband licensee.
This Third Further Notice of Proposed
Rulemaking (Third FNPRM) seeks
comment on its tentative conclusion
that it should continue to mandate a
public/private partnership between the
D block licensee and the public safety
broadband licensee on a number of
proposals and tentative conclusions
regarding the terms and conditions for
the partnership.
DATES: Written comments are due on or
before November 3, 2008, and reply
comments are due on or before
November 12, 2008.
ADDRESSES: You may submit comments,
identified by WT Docket No. 06–150
and PS Docket No. 06–229, by any of the
identified methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Federal Communications
Commission’s Web site: https://
www.fcc.gov/cgb/ecfs/. Follow the
instructions for submitting comments.
• Mail: Filings can be sent by hand or
messenger delivery, by commercial
overnight courier, or by first-class or
overnight U.S. Postal Service mail
(although the Commission continues to
experience delays in receiving U.S.
Postal Service mail). All filings must be
addressed to the Commission’s
Secretary, Office of the Secretary,
Federal Communications Commission.
• People with Disabilities: Contact the
Commission to request reasonable
accommodations (accessible format
documents, sign language interpreters,
CART, etc.) by e-mail: FCC504@fcc.gov
or phone: 202–418–0530 or TTY: 202–
418–0432.
For detailed instructions for
submitting comments and additional
information on the rulemaking process,
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see the SUPPLEMENTARY INFORMATION
section of this document.
FOR FURTHER INFORMATION CONTACT:
Peter Trachtenberg at (202) 418–7369, at
peter.trachtenberg@fcc.gov, Spectrum
and Competition Policy Division,
Wireless Telecommunications Bureau;
Jeffrey S. Cohen at (202) 418–0799,
jeff.cohen@fcc.gov, Public Safety and
Homeland Security Bureau.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Third
FNPRM, WT Docket No. 06–150, PS
Docket No. 06–229, adopted on
September 25, 2008 and released
September 25, 2008. The full text of the
Third FNPRM is available for public
inspection and copying during business
hours in the FCC Reference Information
Center, Portals II, 445 12th Street, SW.,
Room CY–A257, Washington, DC 20554.
It also may be purchased from the
Commission’s duplicating contractor at
Portals II, 445 12th Street, SW., Room
CY–B402, Washington, DC 20554; the
contractor’s Web site, https://
www.bcpiweb.com; or by calling (800)
378–3160, facsimile (202) 488–5563, or
e-mail FCC@BCPIWEB.com. Copies of
the public notice also may be obtained
via the Commission’s Electronic
Comment Filing System (ECFS) by
entering the docket numbers, WT
Docket No. 06–150 and PS Docket No.
06–229. Additionally, the complete item
is available on the Federal
Communications Commission’s Web
site at https://www.fcc.gov.
Synopsis
In the Second Report and Order, 72
FR 48814, August 24, 2007, the
Commission adopted rules for the
establishment of a mandatory public/
private partnership (the 700 MHz
Public/Private Partnership) in the upper
portions of the 698–806 MHz band (700
MHz Band) as the means for promoting
the rapid construction and deployment
of a nationwide, interoperable
broadband public safety network that
would serve public safety and homeland
security needs. Specifically, the
Commission required that the winning
bidder of the commercial license in the
Upper 700 MHz D Block (758–763/788–
793 MHz) (D Block) enter into the 700
MHz Public/Private Partnership with
the nationwide licensee of the public
safety broadband spectrum (763–768/
793–798 MHz) (Public Safety Broadband
Licensee) to enable construction of this
interoperable broadband network,
which would span both the commercial
D Block and public safety spectrum. In
the recently concluded auction of
commercial 700 MHz licenses, bidding
for the D Block license did not meet the
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applicable reserve price of $1.33 billion
and, pursuant to the Commission’s
rules, there was no winning bid for that
license. In the Second Further Notice of
Proposed Rulemaking, 22 FCC Rcd 8047
(2008) (Second FNPRM), the
Commission revisited its decisions
concerning the 700 MHz Public/Private
Partnership, including revisions to this
partnership as well as alternative rules
the Commission should adopt in the
event the D Block licensee is no longer
required to enter into a mandatory
public/private partnership.
In the Third FNPRM, the Commission
seeks comment on the tentative
conclusions and proposals presented in
this Third FNPRM, and on whether
these proposals will lead to a successful
auction and, more importantly, a
successful partnership or partnerships
that will fulfill the Commission’s goal of
making interoperable broadband
wireless service available to public
safety entities across the nation. The
Commission tentatively concludes that
it should continue to require that the D
Block licensee enter into a public/
private partnership with the Public
Safety Broadband Licensee, and
proposes to use competitive bidding to
resolve two critical issues: (1) The
appropriate geographic license area for
the D Block, and (2) the need for a
common broadband technology
platform nationwide. The Commission
also proposes significant clarifications
and revisions of the parties’ obligations
regarding the construction and
operation of the shared wireless
broadband network as well as
modifications to certain rules governing
the establishment of the Network
Sharing Agreement and the licensing of
the D Block following bidding for D
Block licenses. The Commission also
addresses certain additional issues
related to the auction process and the
rules governing public safety users and
the Public Safety Broadband Licensee,
including narrowband relocation issues.
This Third FNPRM is another step in the
Commission’s ongoing efforts to develop
a regulatory framework that will address
current and future public safety
communications needs.
Discussion
I. Introduction
1. In this Third Further Notice of
Proposed Rulemaking (Third FNPRM),
the Commission takes the next step
toward achieving the goal of a
nationwide interoperable broadband
wireless network for public safety
entities. The Commission previously
sought to achieve this goal through an
innovative public/private partnership,
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which required the winning bidder of
the commercial license in the Upper 700
MHz D Block (758–763/788–793 MHz)
(D Block) to partner with the nationwide
licensee of the public safety broadband
spectrum (763–768/793–798 MHz)
(Public Safety Broadband Licensee or
PSBL) to enable construction of an
interoperable broadband network that
would serve both commercial and
public safety users.1 Because the
auction of the D Block did not result in
a winning bid, the Commission issued
the Second FNPRM revisiting the rules
governing the mandatory public/private
partnership, the D Block licensee, and
the Public Safety Broadband Licensee,
seeking comment broadly on how the
Commission might modify those rules to
achieve the Commission goals, whether
the Commission should continue to
mandate a public/private partnership
between the D Block licensee and Public
Safety Broadband Licensee, and if so,
under what terms and conditions.2 The
Commission further indicated that, prior
to adopting final rules, the Commission
would present for public comment a
detailed proposal regarding specific
proposed rules to address these issues.3
In this Third FNPRM, the Commission
now offers and seeks comment on the
following proposals and tentative
conclusions.
2. As an initial matter, the
Commission tentatively concludes that
it should continue to require, as a
license condition, that the D Block
licensee enter into a public/private
partnership with the Public Safety
Broadband Licensee for the purpose of
constructing a wireless broadband
1 See Service Rules for the 698–746, 747–762 and
777–792 MHz Bands, WT Docket No. 06–150,
Revision of the Commission’s Rules to Ensure
Compatibility with Enhanced 911 Emergency
Calling Systems, CC Docket No. 94–102, Section
68.4(a) of the Commission’s Rules Governing
Hearing Aid-Compatible Telephones, WT Docket
No. 01–309, Biennial Regulatory Review—
Amendment of Parts 1, 22, 24, 27, and 90 to
Streamline and Harmonize Various Rules Affecting
Wireless Radio Services, WT Docket 03–264,
Former Nextel Communications, Inc. Upper 700
MHz Guard Band Licenses and Revisions to Part 27
of the Commission’s Rules, WT Docket No. 06–169,
Implementing a Nationwide, Broadband,
Interoperable Public Safety Network in the 700
MHz Band, PS Docket No. 06–229, Development of
Operational, Technical and Spectrum Requirements
for Meeting Federal, State and Local Public Safety
Communications Requirements Through the Year
2010, WT Docket No. 96–86, Declaratory Ruling on
Reporting Requirement under Commission’s Part 1
Anti-Collusion Rule, WT Docket No. 07–166,
Second Report and Order, 22 FCC Rcd 15289 (2007)
(Second Report and Order) recon. pending.
2 See Service Rules for the 698–746, 747–762 and
777–792 Bands; Implementing a Nationwide,
Broadband, Interoperable Public Safety Network in
the 700 MHz Band, WT Docket No. 06–150, PS
Docket No. 06–229, 22 FCC Rcd 8047 (2008)
(Second FNPRM).
3 See id. at 8052 para. 7.
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network that will operate over both D
Block spectrum and public safety
broadband spectrum and provide
broadband services to both commercial
users and public safety entities (shared
wireless broadband network).4 The
Commission finds that a public/private
partnership condition on the D Block
remains the best option to achieve
nationwide build-out of an
interoperable broadband network for
public safety entities, given the current
absence of legislative appropriations for
this purpose and the limited funding
available to the public safety sector. The
Commission also proposes to retain
those current rules that will support this
relationship. For example, the
Commission proposes to continue
requiring the parties to enter into a
Network Sharing Agreement (NSA), and
to make the NSA a condition of the
grant of the D Block license(s). The
Commission also proposes, however, to
clarify and revise the rules to clearly
establish the obligations of the parties to
the partnership with greater specificity
and detail. These clarifications and
revisions address whether the D Block
will be licensed on a nationwide or
regional basis, the obligations of the
parties regarding the construction and
operation of the shared wireless
broadband network, the rules governing
the process for establishing an NSA
between the parties, certain auction
issues, and issues related to public
safety users and the Public Safety
Broadband Licensee. The Commission
anticipates that, by establishing the
rules governing the public/private
partnership in a more comprehensive
and detailed fashion, the Commission
will enhance the certainty of bidders
regarding their potential obligations as
D Block licensees, and facilitate the
rapid and successful negotiation of
NSAs as the Commission would be
significantly reducing the scope of
issues that need to be negotiated.5
Equally important, the Commission
seeks in its proposals to meet the needs
of the public safety community in a
commercially viable manner. With these
goals in mind, the Commission makes
the following proposals.
4 Under the Commission proposal, it is possible
that there will be multiple regional D Block licenses
or a single nationwide D Block license.
Accordingly, references herein to ‘‘the’’ D Block
license and licensee should be understood to
incorporate reference to any of multiple D Block
licenses or licensees, as appropriate. The
Commission proposed rules should be interpreted
in similar fashion.
5 The Commission has appended an NSA term
sheet, which provides a summary of major terms
that the parties must include in their agreement(s).
See, supra, Appendix D.
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3. First, the Commission tentatively
concludes that it should resolve two
critical issues through the use of
competitive bidding: (1) The
appropriate geographic license area for
the D Block, and (2) the need for a
common broadband technology
platform nationwide. The Commission
tentatively concludes that it can resolve
these issues through competitive
bidding by offering alternative sets of D
Block licenses with different license
areas and broadband technology
conditions. With regard to the
appropriate geographic area, the
Commission proposes to offer the D
Block both as a single nationwide
license and on a regional basis, using
geographic areas that the Commission
will refer to as Public Safety Regions
(PSRs). PSRs would be comprised of
fifty-five regions that mirror the
geographic boundaries of the fifty-five
700 MHz Regional Planning Committee
(RPC) regions, and three additional
areas (for a total of 58 PSRs) to cover the
whole country and match the
geographic area of the nationwide
license.6 With regard to the broadband
technology platform, the Commission
proposes to establish rules that will
ensure that a single broadband air
interface is used nationwide regardless
of whether there is a single licensee or
multiple regional licensees, to ensure
that public safety users may
communicate when they roam outside
their home regions.
4. To resolve both of these issues, the
Commission therefore proposes to offer
simultaneously three alternative sets of
licenses that vary by geographic license
area and by conditions regarding the
technology platform that must be used
by the licensee(s). Specifically, under
this proposal, the Commission would
offer (1) a single license for service
nationwide with the technology
platform to be determined by the
licensee; (2) a nationwide set of PSR
licenses conditioned on the use of Long
Term Evolution (LTE) by the licensees;
and (3) a nationwide set of PSR licenses
conditioned on the use of Worldwide
Interoperability for Microwave Access
(WiMAX) by the licensees. The
Commission will then award the D
Block license(s) in the set that receives
bids on licenses covering the greatest
aggregate population, subject to the
requirement that the license(s) must
6 The three additional regions will cover (1) the
Gulf of Mexico; (2) the Territory of Guam (Guam)
and the Commonwealth of Northern Mariana
Islands (Northern Mariana Islands); and (3) the
Territory of American Samoa (American Samoa),
and will be identical to the current Economic Area
(EA) licensing areas for those same regions. See
Appendix A.
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authorize service in areas covering at
least half of the nation’s population. If
more than one set of licenses meeting
these requirements cover the same
population, the Commission will award
the D Block licenses in the set that
receives the highest aggregate gross bid.
The Commission also proposes to
establish auction procedures that will
encourage bidding on licenses covering
as much population as possible,
including procedures to reduce
minimum opening bids on unsold
regional licenses during bidding under
circumstances the Commission
specifically describes below. The
Commission also tentatively concludes
that package bidding on licenses in the
regional sets would serve the public
interest and that it should direct the
Wireless Telecommunications Bureau to
propose and implement detailed
package bidding procedures prior to
bidding. The Commission tentatively
concludes that this method of assigning
D Block licenses will be most likely to
result in the successful development of
a nationwide interoperable broadband
network for public safety use, and
provides a better means of addressing
these issues than by specifying a single
geographic licensing area or broadband
technology in advance of competitive
bidding. At the same time, it will
provide all interested bidders with the
necessary certainty at the time they
make their bids of what conditions will
be applicable to them should their bids
be successful.
5. The Commission proposes
significant clarifications and revisions
of the parties’ obligations regarding the
construction and operation of the shared
wireless broadband network. These
clarifications and revisions address (1)
the use of spectrum in the shared
wireless broadband network, including
requirements regarding public safety
priority access to commercial capacity
in emergencies; (2) the technical
requirements of the shared wireless
broadband network; (3) the performance
requirements of the D Block licensee(s);
and (4) the respective operational roles
of the D Block licensee(s) and the Public
Safety Broadband Licensee. With regard
to spectrum use, the Commission first
tentatively concludes that a D Block
licensee may construct and operate its
shared wireless broadband network
using the entire 20 megahertz of D Block
spectrum and public safety broadband
spectrum as a combined, blended
resource. Under this proposal, public
safety users will still be guaranteed
unconditionally preemptive access to 10
megahertz of capacity at all times, but
the shared wireless broadband network
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may flexibly and dynamically assign
frequencies from either the D Block or
public safety spectrum to provide that
capacity. Second, the Commission
proposes to revise the rules governing
public safety priority access to D Block
spectrum capacity in emergencies. The
Commission proposed revisions
include: (1) Specifying in detail the
circumstances that trigger public safety
priority access to commercial spectrum
capacity; (2) providing that, in this
context, ‘‘priority access’’ means only
that a public safety user would be
assigned the next available channel
within the commercial spectrum over a
commercial user, and does not include
a right to preempt any ongoing
commercial calls being carried over
commercial spectrum capacity; (3)
limiting the additional capacity that
must be provided to public safety users
in emergencies to a specified percentage
of the D Block spectrum capacity; (4)
requiring that public safety priority
access to D Block spectrum capacity be
limited to the time and geographic
scope affected by the emergency; and (5)
specifying the procedures for requesting
and obtaining such access. Third, the
Commission tentatively concludes that
the current rules for commercial access
to public safety spectrum should remain
the same subject to the Commission’s
clarification regarding blended use.
Thus, the Commission proposes that
commercial users will have secondary
access to public safety’s 10 megahertz of
spectrum capacity subject to
unconditional and immediate
preemption when the spectrum capacity
is needed by public safety users. Fourth,
the Commission finds that the
Commission tentative proposals
regarding spectrum use are consistent
with the requirements of Section 337 of
the Communications Act, as amended.
6. With regard to the technical
requirements of the network, in addition
to the Commission’s proposal regarding
the broadband technology platform, it
makes detailed proposals regarding (1)
interoperability and public safety
roaming; (2) availability, robustness,
and hardening of the network; (3)
capacity, throughput, and quality of
service; (4) security and encryption; (5)
power limits, power flux density limits,
and related notification and
coordination requirements; and (6)
ensuring the availability of a satellitecapable handset.
7. With regard to the D Block license
term and performance requirements, the
Commission proposes to extend the
license term to fifteen years and to
adopt performance benchmarks
applicable at the fourth, tenth, and
fifteenth years following the license
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grant date. For the first two benchmarks,
the Commission proposes to require D
Block licensees to provide signal
coverage and offer service to at least 40
percent of the population in each PSR
by the end of the fourth year, and at
least 75 percent by the end of the tenth
year. For the final benchmark at the
fifteenth year, the Commission proposes
to adopt a ‘‘tiered’’ approach, applying
one of three different population
coverage requirements depending on the
population density of the PSR: (1) For
PSRs with an average population
density of less than 100 people per
square mile, the licensee would be
required to provide signal coverage and
offer service to at least 90 percent of the
population within that PSR; (2) for PSRs
with an average population density of at
least 100 people per square mile and
less than 500 people per square mile,
the licensee would be required to
provide signal coverage and offer
service to at least 94 percent of the
population within that PSR; and (3) for
PSRs with an average population
density of at least 500 people per square
mile, the licensee would be required to
provide signal coverage and offer
service to at least 98 percent of the
population within that PSR.
8. The Commission also proposes
modifications to certain rules governing
the establishment of the Network
Sharing Agreement and the licensing of
the D Block following bidding for D
Block licenses, in order to increase the
likelihood of successful, rapid
deployment of the shared wireless
broadband network. First, the
Commission tentatively proposes that it
shall be able to offer any D Block license
to a second highest bidder in the event
that the original winning bidder is not
assigned the license, either due to a
failure to enter into an NSA or for any
reason. Second, the Commission
tentatively concludes that a winning
bidder for a D Block license that is
otherwise qualified will be liable for
default payments only if it chooses not
to execute a Commission-approved
NSA. Thus, an otherwise-qualified
winning bidder for a D Block license
will not be liable for default payments
if the lack of a Commission-approved
NSA results from any other party’s
failure to execute the agreement or a
Commission determination that there is
no acceptable resolution to a dispute
regarding terms to be included in the
agreement. Finally, given the
Commission decision to offer alternative
D Block licenses by auction, the
Commission tentatively concludes that
it should adopt a D Block-specific rule
regarding the amount of additional
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payments owed by any defaulting
bidder. The Commission proposes a rule
equivalent to the Commission’s
standard rule with respect to nonpackage bidding auctions, i.e., that the
Commission will provide that the
additional payment will be between 3
and 20 percent of the applicable bid.
9. The Commission also addresses
certain additional issues related to the
auction process. In particular, in order
to further facilitate applications from
potentially qualified parties, the
Commission tentatively concludes that
it will not restrict the eligibility to bid
of any party that may qualify to hold a
D Block license and that no reserve
price beyond the minimum opening
bid(s) will apply. Furthermore, given
the oversight that already applies to the
D Block, the Commission will codify an
existing exception to the Commission’s
designated entity eligibility rules with
respect to the spectrum capacity of D
Block licenses, so that a designated
entity applicant or licensee with lease or
resale (including wholesale)
arrangement(s) for more than 50% of the
spectrum capacity of any D Block
license will not on that basis alone lose
its eligibility for designated entity
benefits.7
10. The Commission also makes a
number of tentative conclusions and
proposals with regard to the rules
governing public safety users and the
Public Safety Broadband Licensee. The
Commission tentatively concludes that
eligible users of the public safety
broadband spectrum capacity must be
providers of ‘‘public safety services’’ as
defined in the Act.8 The Commission
also proposes to reaffirm the
Commission prior decision to grant the
Public Safety Broadband Licensee sole
discretion regarding whether to permit
Federal public safety agency use of the
public safety broadband spectrum
capacity. Further, the Commission
tentatively concludes not to require
eligible public safety users to subscribe
to the shared broadband network.
11. With respect to the Public Safety
Broadband Licensee, the Commission
tentatively concludes that it should
remain a non-profit entity, and proposes
certain restrictions on its business
relationships to avoid the potential for
conflicts of interest. Specifically, the
7 Because this exception does not extend to
arrangements for use of the spectrum capacity of
licenses other than the D Block license, if an
applicant or licensee has an impermissible material
relationship with respect to the spectrum capacity
of any other license(s), the normal operation of the
Commission’s rules will continue to render it
ineligible for designated entity benefits for the D
Block license.
8 See 47 U.S.C. 337(f)(1).
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Commission proposes that an entity
serving as an advisor, agent, or manager
of the Public Safety Broadband Licensee
will be ineligible to become a D Block
licensee unless such entity completely
severs its business relationship with the
Public Safety Broadband Licensee no
later than thirty days following release
of an oder adopting final rules in this
proceeding. Further, the Commission
proposes to prohibit advisors, agents, or
managers of the Public Safety
Broadband Licensee from establishing
business relationships with third party
entities having a financial interest in the
decisions of the Public Safety
Broadband Licensee.
12. With respect to the mechanism of
funding the Public Safety Broadband
Licensee, the Commission tentatively
concludes that the nationwide D Block
licensee or, if the D Block is licensed on
a regional basis, each regional D Block
licensee, will make an annual payment
to the Public Safety Broadband
Licensee, which would constitute the
sole allowable source of funding for the
Public Safety Broadband Licensee’s
annual operating and administrative
costs. The Commission further
tentatively concludes that the Public
Safety Broadband Licensee must
establish an audited annual budgeting
process, and must submit its proposed
annual budget to the Commission for
approval. The Commission also reserves
the right to request an audit of the
Public Safety Broadband Licensee’s
expenses at any time. The Commission
further tentatively concludes that it
should establish fixed nationwide
service fees that the D Block licensee
may charge to public safety users based
on a discounted rate schedule.
13. The Commission proposes several
changes to the Public Safety Broadband
Licensee’s articles of incorporation and
by-laws. Specifically, the Commission
proposes replacing the Public Safety
Broadband Licensee board of directors
position currently held by the National
Emergency Management Association
(NEMA) with the National Regional
Planning Council (NRPC). The
Commission also tentatively concludes
that the positions of Chairman of the
Board and Chief Executive Officer must
be filled by separate individuals; that
the Public Safety Spectrum Trust
Corporation (PSST) may not hire a new
individual to fill the CEO position until
the D Block licensee(s) has made
funding available to the PSST for its
administrative and operational costs;
and that any individual appointed as
CEO cannot have served on the Public
Safety Broadband Licensee executive
committee during the period three years
prior to his or her appointment as CEO.
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The Commission also tentatively
concludes that the PSST board should
elect a new executive committee with
proposed new conditions on term
limits, consecutive terms, and
committee size. Further, the
Commission tentatively concludes that
it will require three-fourths
supermajority voting on all major
decisions by the board, that board
meetings be open to the public (with
some exceptions), that the minutes of
each board meeting must be made
publicly available (again with some
exceptions), and several other
conditions. The Commission tentatively
declines to rescind the present PSST’s
license and reissue the license to a new
licensee.
14. In relation to narrowband
relocation issues, the Commission
tentatively concludes that the
Commission will extend the current
February 17, 2009 deadline for
completing such relocation twelve
months from the date upon which
narrowband relocation funding is made
available by the D Block licensee(s). The
Commission also proposes that the
current $10 million cap on narrowband
relocation costs should be increased to
$27 million. The Commission also
tentatively concludes that the existing
August 30, 2007 cut-off date for
narrowband deployments outside of the
consolidated narrowband spectrum
should not be changed, and propose
conditions under which waiver relief
may be granted for deployment of
narrowband equipment beyond that
date.
15. The Commission seeks comment
on all of the tentative conclusions and
proposals presented in this Third
FNPRM, and on whether these
proposals will lead to a successful
auction and, more importantly, a
successful partnership or partnerships
that will fulfill the Commission’s goal of
making interoperable broadband
wireless service available to public
safety entities across the Nation.
II. Background
16. In this section, the Commission
reviews the history of its efforts to
establish a public/private partnership to
address the need for nationwide
interoperable public safety
communications and to promote public
safety access to advanced broadband
communication systems and
technologies. The Commission first
describes the rules it promulgated in the
Second Report and Order, which
established two nationwide 700 MHz
licenses, the Public Safety Broadband
License and the commercial D Block
license, and required the licensees to
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enter into a public/private partnership
for the purpose of constructing and
operating a nationwide wireless
broadband network meeting specified
terms. The Commission reviews
petitions for reconsideration of the
Second Report and Order that raised
issues related to this proceeding. The
Commission briefly discusses Auction
73, the auction of commercial 700 MHz
licenses concluded earlier this year in
which the Commission auctioned the D
Block under the public/private
partnership rules but did not receive a
winning bid. Finally, the Commission
summarizes the Second FNPRM, which
commenced the process of revisiting
and reconsidering the public/private
partnership rules that the Commission
continues now in the present Third
FNPRM.
jlentini on PROD1PC65 with PROPOSALS2
A. 700 MHz Second Report and Order
17. The commercial and public safety
spectrum bands at issue in this
proceeding are part of the 700 MHz
Band (698–806 MHz), which is
currently occupied by television
broadcasters, but which must be cleared
of such transmissions and made
available for wireless services by
February 17, 2009, as part of the digital
television (DTV) transition.9 Pursuant to
Congress’s direction in the Balanced
Budget Act of 1997 (Balanced Budget
Act), codified at section 337(a) of the
Act, the Commission has allocated, in
the Upper 700 MHz Band (746–806
MHz), 24 megahertz of spectrum for
public safety services and 36 megahertz
for commercial services.10
18. In the Second Report and Order,
the Commission established, among
other rules regarding the 700 MHz Band,
rules for the 700 MHz public safety
spectrum and one block of the Upper
700 MHz commercial spectrum that
would promote the creation of a
nationwide, interoperable broadband
public safety network. With regard to
the public safety spectrum, the
Commission designated the lower half
of the spectrum (the 763–768 MHz and
793–798 MHz bands) for public safety
broadband communications, and
consolidated existing narrowband
allocations, previously located in both
the lower and upper ends of the public
safety spectrum, in the upper half of the
spectrum (the 769–775 MHz and 799–
9 See Deficit Reduction Act of 2005, Public Law
No. 109–171, 120 Stat. 4 (2006).
10 See Balanced Budget Act of 1997, Public Law
No. 105–33, 111 Stat. 251 sec. 3004 (1997) (adding
new sec. 337 of the Communications Act);
Reallocation of Television Channels 60–69, the
746–806 MHz Band, ET Docket No. 97–157, Report
and Order, 12 FCC Rcd 22953, 22955 para. 5 (1998),
recon. 13 FCC Rcd 21578 (1998) (Upper 700 MHz
Reallocation Order).
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805 MHz bands) exclusively.11 The
Commission also created a single
nationwide license for the public safety
broadband spectrum, the Public Safety
Broadband License, and the
Commission specified the criteria,
selection process, and responsibilities of
the licensee assigned this spectrum,
including a requirement that the
licensee must be a non-profit
organization.12
19. With regard to the commercial
spectrum in the 700 MHz Band, and as
described in greater detail below, the
Commission created a nationwide
license in the D Block (the 758–763
MHz and 788–793 MHz bands, located
adjacent to the public safety broadband
spectrum), and required the D Block
licensee, working with the Public Safety
Broadband Licensee in a public/private
partnership (the 700 MHz Public/Private
Partnership) and using the spectrum
associated with both licenses, to
construct and operate a nationwide
network that would be shared by
commercial and public safety users.13
20. 700 MHz Public/Private
Partnership. The Commission mandated
the 700 MHz Public/Private Partnership
between two nationwide licensees to
promote the rapid deployment of a
nationwide, interoperable, broadband
public safety network that was robust,
cost effective, spectrally efficient, and
based on a flexible IP-based, modern
architecture.14 The Commission found
that nationwide licensing would best
serve these goals by centralizing the
responsibilities for implementing and
administering a broadband network
across the entire country, creating
economies of scale, and avoiding a
fragmented approach to network
construction. The Commission further
determined that the public/private
partnership, by promoting commercial
investment in the build-out of a shared
network infrastructure for both
commercial and public safety users,
would address ‘‘the most significant
obstacle to constructing a public safety
network—the limited availability of
11 See Second Report and Order, 22 FCC Rcd at
15406 para. 322. The Commission also created an
internal guard band in the 768–769 MHz and 798–
799 MHz bands located between the broadband and
narrowband allocations. Id.
12 See Second Report and Order, 22 FCC Rcd at
15406 para. 322.
13 Id. at 15428 para. 386.
14 Id. at 15420 para. 369, 15431 para. 396. See
also Implementing a Nationwide, Broadband,
Interoperable Public Safety Network in the 700
MHz Band, Development of Operational, Technical
and Spectrum Requirements for Meeting Federal,
State and Local Public Safety Communications
Requirements Through the Year 2010, PS Docket
No. 06–229, WT Docket No. 96–86, Ninth Notice of
Proposed Rulemaking, 21 FCC Rcd 14837, 14842–
43 (2006) (700 MHz Public Safety Ninth Notice).
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public funding.’’ 15 The Commission
concluded that providing for a shared
infrastructure using the D Block and the
public safety broadband spectrum
would help achieve significant cost
efficiencies. The Commission noted that
this would allow public safety agencies
‘‘to take advantage of commercial, offthe-shelf technology and otherwise
benefit from commercial carriers’
investments in research and
development of advanced wireless
technologies.’’ 16 The Commission
stated that this approach would also
benefit the public safety community by
providing it with access to an additional
10 megahertz of broadband spectrum
during emergencies.17 Most
importantly, the Commission
anticipated that this particular public/
private partnership approach would
provide all of these public safety
benefits on a nationwide basis.18 The
Commission noted that the 700 MHz
Public/Private Partnership would also
provide the D Block licensee with
benefits, including the right to operate
commercial services in the 10 megahertz
of public safety broadband spectrum on
a secondary, preemptible basis, which
would both help to defray the costs of
build-out and ensure that the spectrum
is used efficiently.19
21. To ensure that the 700 MHz
Public/Private Partnership would serve
the needs of the public safety
community and to address concerns
about its success, the Commission
specified certain mandatory features.
First, the Commission specified
requirements regarding the shared
network to be constructed and the
timing for that construction. In
particular, the Commission established
certain technical requirements for the
shared network, including requirements
relating to the network technology
platform, signal coverage, robustness
and reliability, capacity, security,
operational capabilities and control, and
certain equipment specifications.20
With regard to the spectrum shared by
the common network, the Commission
required that the Public Safety
Broadband Licensee lease the public
safety broadband spectrum for
commercial use by the D Block licensee
on a secondary, preemptible basis, and
that the public safety entities have
priority access to the D Block spectrum
15 Second Report and Order, 22 FCC Rcd at 15431
para. 396.
16 Id.
17 Id.
18 Id.
19 Id.
20 Id. at 15433–34 para. 405.
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jlentini on PROD1PC65 with PROPOSALS2
during emergencies.21 To ensure timely
construction and nationwide coverage,
the Commission specified performance
requirements, including three
population-based build-out benchmarks
requiring the D Block licensee to
provide signal coverage and offer
service to (1) at least 75 percent of the
population of the nationwide D Block
license area by the end of the fourth
year after the DTV transition date, (2) at
least 95 percent of the population of the
nationwide license area by the end of
the seventh year, and (3) at least 99.3
percent of the population of the
nationwide license area by the end of
the tenth year.22
22. Next, while finding it appropriate
to establish these mandatory terms, the
Commission also concluded that many
details of the 700 MHz Public/Private
Partnership should be left to the parties
to negotiate.23 Accordingly, the
Commission established that the terms
of the 700 MHz Public/Private
Partnership would be governed both by
Commission rules and by a Network
Sharing Agreement (NSA) between the
winning bidder for the D Block license
and the Public Safety Broadband
Licensee.24 The Commission further
provided rules governing the process by
which the parties would establish the
NSA, requiring among other things that
negotiations begin by a date certain and
conclude within six months, and
providing that the D Block license
application would not be granted until
the parties obtained Commission
approval of the agreement, executed the
approved agreement, and then filed it
with the Commission.25 The
Commission further specified rules to
govern in the event of a negotiation
dispute. Specifically, the Commission
provided that if, at the end of the six
month negotiation period, or on their
own motion at any time, the Chiefs of
the Public Safety and Homeland
Security Bureau (PSHSB) and the
Wireless Telecommunications Bureau
(WTB) found that negotiations had
reached an impasse, they could take
actions including but not limited to
issuing a decision on the disputed
issues and requiring the submission of
a draft agreement consistent with their
decision.26 The Commission also
provided that if the D Block winning
bidder failed to comply with the
procedures the Commission established
21 Id.
at 15432 para. 399, 15434–43 paras. 407–31.
at 15432 para. 399, 15433–44 paras. 403–06,
15443–46 paras. 432–43.
23 Id. at 15488 para. 447.
24 Id. at 15432 paras. 399–400, 15447–49 paras.
444–54.
25 Id. at 15448 para. 447.
26 Id. at 15465 para. 508.
22 Id.
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for negotiation or dispute resolution,
failed to receive final Commission
approval of an NSA, or failed to execute
an approved NSA, it would be deemed
to have defaulted on its license and
would be subject to the default
payments required by Section 1.2109 of
the Commission rules.27
23. The Commission also established
a number of measures to safeguard the
interests of public safety on an ongoing
basis after the NSA is executed. These
measures included: (1) Requirements
related to the organization and structure
of the 700 MHz Public/Private
Partnership, intended to protect the D
Block license and network assets from
being drawn into a bankruptcy
proceeding; (2) a prohibition on
discontinuance of service provided to
public safety entities; (3) special
remedies in the event that the D Block
licensee or Public Safety Broadband
Licensee fails to comply with either the
Commission’s rules or the terms of the
NSA; (4) a special, exclusive process for
resolving any disputes related to the
execution of the terms of the NSA; and
(5) ongoing reporting obligations.28
24. Reserve Price for the Auction of
the D Block. In the Second Report and
Order, the Commission also concluded
that block-specific aggregate reserve
prices should be established for each
commercial license block—the A, B, C,
D, and E Blocks—to be auctioned in
Auction 73, and directed WTB to adopt
and publicly disclose those reserve
prices prior to the auction, pursuant to
its existing delegated authority and
consistent with the Commission
directions.29 For the D Block, the
Commission concluded that WTB
should consider certain factors in
setting the D Block reserve price,
including the 700 MHz Public/Private
Partnership conditions, which might
suggest a reserve price of $1.33 billion.
The Commission provided that, in the
event that bids for the D Block license
did not meet the reserve price, the
Commission would leave open the
possibility of offering the license on the
same terms or re-evaluating the D Block
license conditions.30
25. Narrowband Relocation. As
discussed above, to promote public
safety access to a nationwide,
interoperable broadband network, the
Commission designated the lower half
of the public safety spectrum for public
safety broadband communications, and
consolidated existing narrowband
allocations, previously located in both
27 Id.
at 15466 para. 511.
at 15466–71 para. 513–30.
29 See id. at 15400 para. 301.
30 See id. at 15404 para. 314.
28 Id.
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57755
the lower and upper ends of the public
safety spectrum, in the upper half of the
spectrum.31 The Commission also
shifted the entire public safety band
down one megahertz, so that it would be
immediately adjacent to the D Block
spectrum, to further facilitate the
development of a shared wireless
broadband network over both D Block
and public safety broadband
spectrum.32 Both the 1-megahertz shift
and the narrowband consolidation,
however, left certain existing public
safety narrowband operations outside of
the spectrum now designated for
narrowband services.
26. The Commission provided in the
Second Report and Order that all 700
MHz narrowband public safety
operations outside of the newly
consolidated narrowband spectrum
must be relocated to that spectrum no
later than the DTV transition date.33 To
effectuate the consolidation of the
narrowband channels, the Commission
required the D Block licensee to pay the
costs of relocating narrowband radios
and capped the disbursement amount
for such relocation costs at $10
million.34 The Commission also
cautioned that any narrowband
equipment deployed in the 764–770
MHz and 794–800 MHz bands (channels
63 and 68), or in the 775–776 MHz and
805–806 MHz bands (the upper one
megahertz of channels 64 and 69), more
than 30 days following the adoption
date of the Second Report and Order
would be ineligible for relocation
funding.35 In addition, the Commission
prohibited authorization of any new
narrowband operations in that
spectrum, as of 30 days following the
adoption date of the Second Report and
Order.36 Subsequent to the release of the
Second Report and Order, the
Commission granted limited waivers to
two parties that permitted them to
continue to deploy new narrowband
operations outside the consolidated
narrowband spectrum after August 30,
2007.37 The Commission deferred
31 See id. at 15406 para. 322. The Commission
also created an internal guard band in the 768–769
MHz and 798–799 MHz bands located between the
broadband and narrowband allocations. Id.
32 See id. at 15333 para. 111.
33 Id. at 15410 para. 332.
34 Id. at 15412 para. 341.
35 Id. at 15412 para. 339.
36 Id.
37 See Implementation of a Nationwide,
Broadband, Interoperable Public Safety Network in
the 700 MHz Band; Development of Operational,
Technical and Spectrum Requirements for Meeting
Federal, State and Local Public Safety
Communications Requirements Through the Year
2010, PS Docket No. 06–229, WT Docket No. 96–
86, Order, 22 FCC Rcd 20290 (2007); Implementing
a Nationwide, Broadband, Interoperable Public
Continued
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decision on other issues raised by their
requests, however, including the
appropriate duration of the relief and
whether the parties would be entitled to
reimbursement for the costs of
relocating narrowband operations
deployed after August 30, 2007.
jlentini on PROD1PC65 with PROPOSALS2
B. Petitions for Reconsideration
27. Ten parties filed petitions for
reconsideration seeking review of
various aspects of the Second Report
and Order.38 Three of the petitions
sought reconsideration of the rules
governing the 700 MHz Public/Private
Partnership specifically.39 All three of
these petitioners argued that the
application of the default payment rules
to the D Block winner in the event of a
failure to establish an NSA should be
modified, for example, by imposing
such payment obligations only if the D
Block winner is found to have
negotiated in bad faith.40 One petitioner
also argued that network requirements
Safety Network in the 700 MHz Band; Development
of Operational, Technical and Spectrum
Requirements for Meeting Federal, State and Local
Public Safety Communications Requirements
Through the Year 2010; Request for Waiver of
Pierce Transit, PS Docket No. 06–229, WT Docket
No. 96–86, Order, 23 FCC Rcd 433 (PSHSB 2008).
38 AT&T Inc. Petition for Reconsideration and
Clarification, WT Docket No. 06–150; PS Docket No.
06–229 (filed Sept. 24, 2007) (AT&T Petition for
Reconsideration); Blooston Rural Carriers Petition
for Partial Reconsideration and/or Clarification, WT
Docket No. 06–150; PS Docket No. 06–229 (filed
Sept. 24, 2007) (Blooston Petition for
Reconsideration); Petition for Reconsideration of
the Ad Hoc Public Interest Spectrum Coalition, WT
Docket No. 06–150; PS Docket No. 06–229 (filed
Sept. 24, 2007) (PISC Petition for Reconsideration);
Cyren Call Communications Corporation Petition
for Reconsideration and for Clarification, WT
Docket No. 06–150; PS Docket No. 06–229 (filed
Sept. 24, 2007) (Cyren Call Petition for
Reconsideration); Frontline Wireless, LLC Petition
for Reconsideration (filed Sept. 24, 2007); Pierce
Transit Petition for Reconsideration, WT Docket No.
06–150; PS Docket No. 06–229 (filed Sept. 24, 2007)
(Pierce Transit Petition for Reconsideration); Rural
Telecommunications Group, Inc. Petition for
Reconsideration, WT Docket No. 06–150; PS Docket
No. 06–229 (filed Sept. 24, 2007) (RTG Petition for
Reconsideration); Commonwealth of Virginia
Petition for Reconsideration, WT Docket No. 06–
150; PS Docket No. 06–229 (filed Sept. 24, 2007)
(Virginia Petition for Reconsideration); NTCH, Inc.
Petition for Partial Reconsideration, WT Docket No.
06–150; PS Docket No. 06–229 (filed Sept. 21, 2007)
(NTCH Petition for Reconsideration); MetroPCS
Communications, Inc. Petition for Clarification and
Reconsideration, WT Docket No. 06–150; PS Docket
No. 06–229 (filed Sept. 20, 2007) (MetroPCS
Petition for Reconsideration).
39 See AT&T Petition for Reconsideration; Cyren
Call Petition for Reconsideration; Frontline Petition
for Reconsideration. The Frontline September 20,
2007 Request also seeks changes to the rules
governing the 700 MHz Public/Private Partnership.
See Request to Further Safeguard Public Safety
Service by Frontline Wireless, WT Docket No. 06–
150 (filed Sept. 20, 2007) (Frontline September 20,
2007 Request).
40 See AT&T Petition for Reconsideration at 7–9;
Cyren Call Petition for Reconsideration at 5–7;
Frontline Petition for Reconsideration at 23–25.
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should be specified more precisely for
potential bidders prior to auction.41
Conversely, another of these petitioners
argued that, in some respects, the
technical requirements in the rules were
too specific, and that the Commission
should ‘‘not prematurely rule on
specific technical issues, [and] should
instead allow the [Public Safety
Broadband Licensee] and D Block
winner to develop those details as they
negotiate the NSA * * * .’’ 42
28. Two of the ten petitioners sought
reconsideration of the aggregate reserve
prices set for the commercial license
blocks, including the reserve price for
the D Block.43 These petitioners
presented related arguments in the preauction process.44 After considering the
arguments, WTB established reserve
prices consistent with the direction of
the Second Report and Order, including
setting a $1.33 billion reserve price for
the D Block.45
29. Finally, two other parties filed
petitions seeking reconsideration of
some or all of the requirements
regarding public safety narrowband
relocation, as well as requests for waiver
of some of these requirements.46 The
requests for waiver have since been
granted in part.47 The two petitions,
however, together with the other
petitions seeking reconsideration of the
Second Report and Order, remain
pending.
C. Auction 73
30. Results of the Auction. The
auction of the D Block and other 700
MHz Band licenses, designated Auction
41 See
AT&T Petition for Reconsideration at 5.
Frontline Petition for Reconsideration at
22. See also Cyren Call Petition for Reconsideration
at 7.
43 See, generally, Frontline Petition for
Reconsideration; MetroPCS Petition for
Reconsideration.
44 See Auction of 700 MHz Band Licenses
Scheduled for January 24, 2008; Notice and Filing
Requirements, Minimum Opening Bids, and other
Procedures for Auctions 73 and 76, Public Notice,
22 FCC Rcd 18141, 18194–95 paras. 197–90 (2007)
(Auction 73/76 Procedures Public Notice).
45 See id. at 18193–96 paras. 194–200.
46 See Virginia Petition for Reconsideration;
Pierce Transit Petition for Reconsideration.
47 See Implementation of a Nationwide,
Broadband, Interoperable Public Safety Network in
the 700 MHz Band; Development of Operational,
Technical and Spectrum Requirements for Meeting
Federal, State and Local Public Safety
Communications Requirements Through the Year
2010, PS Docket No. 06–229, WT Docket No. 96–
86, Order, 22 FCC Rcd 20290 (2007); Implementing
a Nationwide, Broadband, Interoperable Public
Safety Network in the 700 MHz Band; Development
of Operational, Technical and Spectrum
Requirements for Meeting Federal, State and Local
Public Safety Communications Requirements
Through the Year 2010; Request for Waiver of
Pierce Transit, PS Docket No. 06–229, WT Docket
No. 96–86, Order, 23 FCC Rcd 433 (PSHSB 2008).
42 See
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73, commenced on January 24, 2008,
and closed on March 18, 2008.48 While
the bids for licenses associated with the
other 700 MHz Band blocks offered at
Auction 73 (the A, B, C, and E Blocks)
exceeded the applicable aggregate
reserve prices for those blocks, the
nationwide D Block license received
only a single bid that did not meet its
reserve price of $1.33 billion and thus
did not become a winning bid.49 On
March 20, 2008, the Commission
determined that the Commission would
not proceed immediately to re-auction
the D Block license in order to provide
us additional time to consider the
Commission options.50
31. Inspector General’s Report. On
April 25, 2008, the Office of Inspector
General (OIG) issued a report on its
investigation of allegations that certain
statements made by an advisor to the
Public Safety Broadband Licensee to
potential bidders for the D Block license
in Auction 73, particularly those
regarding the spectrum lease payments
that the Public Safety Broadband
Licensee would request from the D
Block licensee for use of public safety
spectrum, had the effect of deterring
various companies from bidding on the
D Block.51 The OIG determined that the
statements in question were ‘‘not the
only factor in the companies’ decision
not to bid on the D Block.’’ Rather, it
concluded that ‘‘the uncertainties and
risks associated with the D Block,
including, but not limited to, the
negotiation framework with [the Public
Safety Broadband Licensee], the
potential for default payment if
negotiations failed, and the costs of the
build-out and the operations of the
network, taken together, deterred each
of the companies from bidding on the D
Block.’’ 52
D. Second Further Notice of Proposed
Rulemaking
32. On May 14, 2008, to begin the
process of reconsidering the appropriate
rules for the D Block and the Public
48 See Auction 73, 700 MHz Band, at https://
wireless.fcc.gov/auctions/
default.htm?job=auction_summary&id=73.
49 See id.; see also Auction of 700 MHz Band
Licenses Closes, Public Notice, DA 08–595 (rel.
Mar. 20, 2008) (700 MHz Auction Closing Public
Notice). https://wireless.fcc.gov/auctions/
default.htm?job=auction_summary&id=73.
Specifically, a bid of $472 million was entered by
Qualcomm in Round 1 of the auction.
50 See Auction of the D Block License in the 758–
763 and 788–793 Bands, AU Docket No. 07–157,
Order, 23 FCC Rcd 5421, para. 5 (2008) (D Block
Post-Auction Order).
51 See Office of Inspector General Report, from
Kent R. Nilsson, Inspector General, to Chairman
Kevin J. Martin (OIG rel. Apr. 25, 2008) (OIG
Report).
52 OIG Report at 2.
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Safety Broadband License, the
Commission released the Second
Further Notice of Proposed Rulemaking
(Second FNPRM). In the Second
FNPRM, the Commission enumerated
the following goals and principles for
this rulemaking proceeding:
• To facilitate public safety access to
a nationwide, interoperable broadband
network in a timely manner;
• To identify concerns in the existing
structure of the 700 MHz Public/Private
Partnership to inform the Commission
decision making going forward;
• To promote wireless innovation and
broadband network penetration while
meeting the communications needs of
the first responder community in a
commercially viable manner;
• To identify funding opportunities
for the public safety community to
realize the promise of a broadband
communications infrastructure with a
nationwide level of interoperability; and
• To maximize the commercial and
public safety benefits of the D Block
spectrum.53
33. With these goals and principles in
mind, the Commission sought comment
first on whether and how to clarify or
revise the rules governing the public
safety component of the 700 MHz
Public/Private Partnership, including
rules governing the Public Safety
Broadband Licensee, the entities eligible
to obtain access to the public safety
broadband network,54 and the
relocation of public safety narrowband
operations.
34. With regard to the Public Safety
Broadband Licensee, the Commission
sought comment on (1) whether to
revise or clarify the structure and
criteria of the Public Safety Broadband
Licensee as adopted in the Second
Report and Order, including whether to
clarify the requirement that the Public
Safety Broadband Licensee must be a
non-profit organization; 55 (2) how the
Public Safety Broadband Licensee
should be funded; 56 (3) whether to
adopt additional measures to better
enable Commission or Congressional
oversight of the Public Safety
Broadband Licensee’s activities; 57 and
(4) whether, in light of these and other
possible changes, the Commission
should rescind the current Public Safety
53 See
Second FNPRM, 23 FCC Rcd at 8052 para.
jlentini on PROD1PC65 with PROPOSALS2
6.
54 See id. at 8058–8062 paras. 24–32. The term
‘‘public safety broadband network,’’ which the
Commission has used in the Second FNPRM and
again in this Third FNPRM, refers to those functions
and services of the shared network to which the
Public Safety Broadband Licensee will administer
access.
55 See id. at 8064 para. 40, 8067 para. 48.
56 See id. at 8065–8065 paras. 42–45
57 See id. at 8067 para. 48, 8068 para. 51.
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Broadband License and seek new
applicants.58
35. Regarding access to the public
safety broadband network, the
Commission sought comment on (1)
whether to clarify which entities are
eligible to use the public safety
broadband network; (2) whether to
adopt measures requiring or promoting
use of the public safety broadband
network by eligible public safety
entities; 59 (3) whether State
governments should have a role in
coordinating the participation of public
safety entities in the public safety
broadband network; 60 and (4) whether
to revise the rules regarding use of the
public safety broadband network by
Federal public safety agencies.61
36. With regard to the relocation of
public safety narrowband operations,
the Commission sought comment on
issues including (1) whether to revise or
eliminate the cap on relocation
expenses; (2) whether, in light of the
proposed re-auction of the D Block and
associated timing issues, the
Commission should continue to require
relocation to be completed by the DTV
transition date; (3) whether to amend
the process for accomplishing the
relocation; and (4) whether the
Commission should extend the August
30, 2007 cut-off date for new
narrowband deployments outside the
consolidated narrowband spectrum.62
37. Turning to the 700 MHz Public/
Private Partnership, the Commission
asked, as a central matter, whether the
Commission should continue to require
the D Block licensee and the Public
Safety Broadband Licensee to enter into
a 700 MHz Public/Private Partnership.63
The Commission further sought
comment on a broad set of possible
revisions to the 700 MHz Public/Private
Partnership in the event the
Commission continued that
requirement, and on which changes
would best serve the goal of making a
broadband, interoperable network
available on a nationwide basis to
public safety entities.64
38. In particular, the Commission
sought comment on (1) whether to
establish a single nationwide D Block
licensee or create multiple D Block
licenses with, for example, Regional
Economic Area Grouping (REAG)
geographic license areas; 65 (2) whether
to revise or clarify the technical
id. at 8068 para. 53.
id. at 8063 para. 37.
60 See id. at 8068 para. 52.
61 See id. at 8092–93 para. 126.
62 See id. at 8111 paras. 180–182.
63 See id. at 8069 para. 54.
64 See id. at 8069 para. 54, 8070 para. 58.
65 See id. at 8109–8112 paras. 183–86.
57757
requirements of the shared network that
the D Block licensee must construct; 66
(3) whether the Commission should
continue to require that the D Block
licensee provide the Public Safety
Broadband Licensee, in emergencies,
with priority access to the D Block
spectrum, and if so, whether the
Commission should specify the
circumstances that constitute an
emergency for this purpose or establish
other limits to such emergency priority
access; 67(4) whether to revise the D
Block licensee’s network build-out or
performance requirements and the
extent to which they could be met
through non-cellular technologies such
as Mobile Satellite Systems (MSS); 68 (5)
whether to revise or clarify the
respective operational roles of the D
Block licensee and the Public Safety
Broadband Licensee in the provision of
network services to public safety users
once the shared network is
constructed; 69 and (6) whether the
Commission should regulate network
service fees.70
39. The Commission further sought
comment on the process by which these
parties would establish a NSA that
would further define the terms of the
700 MHz Public/Private Partnership.
Among other issues, the Commission
sought comment regarding (1) what
rules should apply to the negotiation of
the NSA; (2) whether to adopt dispute
resolution procedures in the event the
parties are unable to negotiate a
voluntary agreement on NSA terms and
if so, whether such procedures should
include mandatory and binding
adjudication of the disputes; (3) in the
event that the process, with or without
adjudication, is ultimately unsuccessful
in establishing an NSA, whether and to
what extent the D Block winner should
be held liable for default payments; (4)
whether, in the event of a failure to
establish an NSA, the Commission
should offer the D Block license to the
next highest bidder or immediately reauction it without the 700 MHz Public/
Private Partnership condition; and (5) if
a further re-auction is required, whether
the D Block winning bidder should be
prohibited from participating.71
40. The Commission also sought
comment on a number of other auctionrelated issues, including (1) whether to
restrict who may participate in the new
auction of the D Block license; (2)
58 See
59 See
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66 See
id. at 8071–78 paras. 61–83.
id. at 8079–80 paras. 85–87.
68 See id. at 8081–86 paras. 90–105
69 See id. at 8088–89 paras. 113–16, 8090–92
paras. 121–26.
70 See id. at 8094–95 paras. 131–33.
71 See id. at 8096–8100 paras. 138–54.
67 See
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whether to establish a reserve price for
such an auction and if so, at what
level; 72 (3) whether to adopt an
exception to the impermissible material
relationship rule for the determination
of designated entity eligibility with
respect to arrangements for the lease or
resale (including wholesale) of the
spectrum capacity of the D Block
license; 73 and (4) whether to modify the
amount of the default payment
potentially applicable to the D Block
winning bidder.74
41. In addition to seeking comment on
rules in the event that the Commission
retains the 700 MHz Public/Private
Partnership requirement, the
Commission also sought comment on
alternative rules for both the D Block
and the Public Safety Broadband
License in the event that the
Commission does not retain the
requirement. For the D Block, the
Commission sought comment in
particular on the appropriate geographic
license area, performance requirements,
license block size and license term,
power and out-of-band-emission
(OOBE) limits, and licensing
partitioning and disaggregation rules,
and whether to impose conditions such
as an open-platform or wholesale
requirement.75 For the Public Safety
Broadband Licensee, the Commission
sought comment on how the
Commission might still achieve the goal
of ensuring that a nationwide,
interoperable broadband network is
available for use of public safety, and
whether there are rules the Commission
should impose on the Public Safety
Broadband Licensee to achieve that
goal.76
42. Finally, the Commission provided
in the Second FNPRM that, before
adopting final rules to address the
issues raised therein, the Commission
would present for public comment, in a
subsequent further notice of proposed
rulemaking, a detailed proposal
including the specific rules that the
Commission intended to promulgate.77
The Commission further indicated that
the Commission would seek comment
on an expedited basis.78
III. Discussion
jlentini on PROD1PC65 with PROPOSALS2
A. Whether to Retain the 700 MHz
Public/Private Partnership Condition
43. Background. In the Second Report
and Order, the Commission established
72 See
id. at 8104 paras. 163–64.
id. at 8105–06 paras. 166–67.
74 See id. at 8108–09 paras. 172–75.
75 See id. at 8115–16 paras. 192–205.
76 See id. at 8119–20 paras. 206–212.
77 See id. at 8052 para. 7.
78 See id. at 8052 n. 10.
73 See
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rules mandating a public/private
partnership between two nationwide
licensees in the 700 MHz spectrum, the
licensee of the commercial D Block and
the Commission-designated licensee of
the public safety broadband spectrum
(Public Safety Broadband Licensee), to
address the critical need of public safety
users for interoperable, broadband
communications. These rules required
the D Block licensee to construct and
operate a nationwide, interoperable
broadband network across both the D
Block and 700 MHz public safety
broadband spectrum to provide
broadband network services to both
commercial and public safety entities.
44. The Commission found that
promoting commercial investment in
the build-out of a shared network
infrastructure would address the most
significant obstacle to constructing a
public safety network—the limited
availability of public funding. The
Commission further determined that the
network, by relying on a shared
infrastructure to provide both
commercial and public safety services,
would achieve significant cost
efficiencies, and benefit public safety
agencies by allowing them to take
advantage of off-the-shelf technology
and commercial carriers’ investments in
research and development of advanced
wireless technologies, as well as provide
them with access to an additional 10
megahertz of broadband spectrum
during emergencies. The Commission
concluded that the public/private
partnership approach thus provided the
most practical means of speeding
deployment of a nationwide,
interoperable, broadband network for
public safety service that is designed to
meet their needs in times of crisis. At
the same time, the Commission noted, it
would provide the D Block licensee
with rights to operate commercial
services in the 10 megahertz of public
safety broadband spectrum on a
secondary, preemptible basis, which the
Commission anticipated would help to
defray the costs of build-out and also
ensure that the spectrum is used
efficiently.
45. In the Second FNPRM, the
Commission sought comment on
whether the public interest would best
be served by the development of a
nationwide, interoperable wireless
broadband network for both commercial
and public safety services through the
700 MHz Public/Private Partnership
between the D Block licensee and the
Public Safety Broadband Licensee, and
whether the Commission should
therefore continue to require that the D
Block licensee and Public Safety
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Broadband Licensee enter into the 700
MHz Public/Private Partnership.
46. Comments. In response to the
Second FNPRM, numerous commenters
representing both public safety and
commercial interests support continuing
to require a public/private partnership
between the D Block licensee and the
Public Safety Broadband Licensee.79
These commenters emphasize the
importance of providing public safety
first responders with an interoperable
broadband wireless network 80 and they
argue that a public/private partnership
remains the best and possibly the only
means of achieving these goals.81 In
particular, they argue that a public/
private partnership is the only viable
means of funding the construction of a
nationwide network.82 While noting
that legislative appropriations could
theoretically fund such a network, they
79 See ACT Comments at 1; ALU Comments at 1;
AASHTO Comments at 7; APCO Comments at 3;
AT&T Comments at 2–4; Big Bend Comments at 1;
California Comments at 7; Cellular South
Comments at 1–2; Ericsson Comments at 3; IMSA
et al. Comments at 1–2; MSUA Comments at 1;
MSV Comments at i; NAEMT Comments at 1;
NATOA et al. Comments at 7; NENA Comments at
2; NPSTC Comments at 1; NRPC Comments at 4;
NTCH Comments at 1–2; PSST Comments at 4; RCA
Comments at 1; RPC 6 Comments at 3; RPC 33
Comments at 2 (supporting the partnership ‘‘as long
as there is regional and/or local control over the
applied use of this network’’); Seybold Comments
at 2; SIEC Comments at 1; Sprint-Nextel Comments
at 9; TeleCommUnity Comments at 3, 5–6; Televate
Comments at 3; TE M/A–COM Comments at 3; U.S.
Cellular Comments at 1; Coverage Co. Comments at
1; VFCA Comments at 3; WFCA Comments at 1;
AASHTO Reply Comments at 1; Cyren Call Reply
Comments at 2; IACPNSA Reply Comments at 1;
ICMA Reply Comments at 2; ITS America Reply
Comments at 2; NPSTC Reply Comments at 3;
Sprint Nextel Reply Comments at 2–3; Space Data
Reply Comments at 2; SouthernLINC Reply
Comments at ii.
80 See AASHTO Comments at 7 (asserting that,
‘‘[w]ithout a single network using a common
technology as its basis, the Commission nation’s
emergency response and disaster relief workers will
continue to be hampered in their ability to respond
to any call for assistance in the wake of a natural
or man caused situation.’’); Cellular South
Comments at 1; Ericsson Comments at 3; Peha
Comments at 2; MSUA Comments at 1; NAEMAT
Comments at 2; NPSTC Comments at 6; PSST
Comments at 4; Qualcomm Comments at 7; SIEC
Comments at 1.
81 See, e.g., APCO Comments at 3; Ericsson
Comments at 3; IMSA et al. Comments at i; RCA
Comments at 1. See also AT&T Comments at 2–3;
Cellular South Comments at 1, 2; IMSA et al. Reply
Comments at 3; ITS America Reply Comments at 2;
NENA Comments at 2.
82 See AT&T Comments at 3; NATOA et al.
Comments at iii; NAEMT Comments at 2; PSST
Comments at 4–5; See also Cellular South
Comments at 2; Ericsson Comments at 3–4; NPSTC
Comments at 7 (describing public/private
partnership as ‘‘the only reasoned course to meet
this challenge given the lack of any funding to
deploy the system.’’); Sprint Nextel Comments at 10
(‘‘public/private partnerships have been shown to
be an effective means of galvanizing resources in
the telecommunications and technology industries
to meet critical needs in the public sector.’’).
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assert that such funding is not going to
be forthcoming, or that it is too
uncertain for the Commission to rely
upon.83
47. Commenters point to other
benefits of the public/private
partnership as well. Several argue, for
example, that by sharing spectrum
between commercial and public safety
users, the public/private partnership
will promote spectrum efficiency.84
AT&T, discussing the benefits of public/
private partnerships more generally,
also asserts that the commercial partner
in a public/private partnership can
‘‘leverage existing networks, technical
assets, and spectrum resources to
develop the interoperable network as
quickly and efficiently as possible’’ and
that it might rely on ‘‘previous
experiences constructing wireless
networks to ensure the construction of
a reliable and effective public/private
wireless broadband network.’’ 85
48. A number of commenters either
oppose or express strong concerns
regarding retaining the public/private
partnership condition on the D Block.86
They argue, among other things, that
because of the high incremental cost of
constructing a network to public safety
specifications and build-out
requirements, the network cannot be
commercially viable without
government funding.87 They further
argue that this problem is exacerbated
by aspects of the 700 MHz Public/
Private Partnership that make it difficult
or impossible to determine revenue
potential, and by the difficulty raising
capital in the current economic
jlentini on PROD1PC65 with PROPOSALS2
83 See,
e.g., NATOA et al. Comments at iii. See
also id. at 7 (‘‘Congress has made it clear that
government funding * * * is not possible’’); APCO
Reply Comments at 3 (‘‘the Commission cannot
make policy decisions based on a ‘hope and prayer’
that Congress will act.’’).
84 See AT&T Comments at 4; Cellular South
Comments at 2; NATOA et al. Comments at 8; see
also PSST Comments at 5–6.
85 AT&T Comments at 2–3. See also IMSA et al.
Reply Comments at 6; PSST Comments at 6.
86 IAFF Comments at 1; King County Comments
at 1–3; MetroPCS Comments at 5–6; Motorola
Comments at 5–7; NYPD Comments at 3–5; RTG
Comments at ii; San Francisco Comments at 2–4;
Verizon Wireless Comments at 7–11; Rivada Reply
Comments at 1–2, 4–5.
87 See, e.g. Motorola Comments at i, 2, 7, 9
(significant buildout and operating costs ‘‘will
dramatically affect the ability of the D-Block
licensee(s) to compete effectively with other
commercial services on price’’ and that ‘‘further
direction, legislative action, and funding are needed
from Congress to ensure that first responders have
the necessary resources to deploy a broadband
video and data network’’); King County Comments
at 2; NYPD Comments at 3 (‘‘there is simply no
business case for a commercial wireless network
operator to build a nationwide network that will
meet public safety coverage and survivability
standards.’’); RPC 9 Comments at 3; San Francisco
Comments at 7; Verizon Wireless Comments at 7–
8. See also Motorola Reply Comments at 2.
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environment. Several commenters argue
that while the Commission might
reduce the public safety-related
requirements sufficient to permit
commercial viability, this would defeat
the public safety purpose of the
network.88
49. Some commenters also argue that
the Commission needs to address the
unmet commercial needs of small and
regional carriers for unencumbered
spectrum suitable for advanced
broadband services and that this
demand can best be met by the D
Block.89 Based on this concern, for
example, MetroPCS recommends that
the Commission auction the D Block
unencumbered and ‘‘seek congressional
action to have the proceeds of such
auction be used by the public safety
community to build the network it
needs.’’ 90
50. Some public safety entities oppose
the public/private partnership out of
concern that the commercial incentives
of the D Block licensee are inconsistent
with its obligation to meet public safety
needs. These commenters assert that,
due in part to a lack of confidence in the
network, and in some cases to the
availability of local alternatives, local
public safety entities will not use the
network, and will therefore receive no
benefit from the 700 MHz public safety
broadband spectrum.91 These
commenters propose that, instead of
using the public safety broadband
spectrum in the 700 MHz Public/Private
Partnership, the Commission should
provide public safety entities direct
88 Motorola Comments at 5; NYPD Reply
Comments at 4–5; Verizon Wireless Comments at 8;
Verizon Wireless Reply Comments at 1. See also
MetroPCS Comments at 14. Cf. ITS America Reply
Comments at 3 (‘‘additional funding from Congress
to cover the incremental costs of a Public Safety
network compared to that of a commercial network
is likely to be required.’’).
89 See MetroPCS Comments at 9–11; RTG
Comments at 4–5.
90 MetroPCS Comments at 6, 9–11. See also RTG
Comments at 4; CTIA Reply Comments at 2–3, 5.
MetroPCS also argues that certain aspects of the 700
MHz Public/Private Partnership, including the
requirement of commercial access to public safety
spectrum on a secondary basis and of public safety
access to commercial spectrum in emergencies, may
violate Section 337 of the Communications Act. See
MetroPCS Comments at 14–16. The Commission
addresses these legal issues in the Commission
discussion of spectrum use in the shared wireless
broadband network.
91 NYPD Comments at 3 (asserting that public
safety agencies in New York City have ‘‘little
incentive * * * to pay subscriber fees to access a
nationwide public/private broadband network’’
because a municipal public safety broadband data
network will be fully deployed by the end of 2008);
San Francisco Comments at 2–3; see also id. at 2
(describing results of a partnership requirement as
‘‘an uncertain auction, a vague network sharing
agreement, an untested network, and the prospect
that many local public safety agencies could choose
not to participate’’); RTG Comments at 2.
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57759
access to the spectrum in order to build
out their own separate networks.92
AT&T, Verizon Wireless, and others
support a public-private partnership but
argue that a Request for Proposal
process is a better alternative for
accomplishing this goal than a reauction
of the spectrum.93 Specifically, AT&T
and Verizon propose a process in which
the Commission would reallocate the D
Block spectrum to the PSBL, who in
turn would use the RFP process to select
a lessee or lessees to build a shared
network.94 Verizon Wireless also
proposes an alternative RFP process in
which the Commission would ‘‘auction
the spectrum on an unencumbered basis
and give the proceeds to public safety to
support the deployment of interoperable
communications solutions.’’ 95 The
public safety licensee would, in turn,
use an RFP process to establish a
partnership with a commercial provider
(presumably through some leasing
arrangement).96
51. Discussion. The Commission
tentatively concludes that it should
continue to require, as a license
condition, that the D Block licensee
enter into a public/private partnership
with the Public Safety Broadband
Licensee for the purpose of constructing
a shared wireless broadband network
that will provide interoperable
broadband service to public safety
entities. Throughout this proceeding,
the Commission has sought to promote
nationwide access by public safety
agencies to interoperable broadband
wireless services operating over a
modern, IP-based system architecture.
The Commission has further sought to
achieve certain ancillary goals, such as
ensuring the robustness and
survivability of the public safety
broadband system as well as promoting
cost and spectrum efficiency.97
Achieving these public safety goals
remains very much in the public
interest. The Commission has noted
92 San Francisco Comments at 2; King County
Comments at 2–3; NYPD Comments at 5–8. See also
NYPD Comments at 7, 10; Philadelphia Comments,
generally (arguing that local governments should
have a right to ‘‘opt-out’’ of the nationwide network
and construct an independent network in the public
safety broadband spectrum’’); TDC Comments at 3;
Rivada Reply Comments at 1,2, 4.
93 See, e.g., AT&T Comments at 2.
94 See AT&T Comments at 6; Verizon Wireless
Comments at 21, n.33.
95 Verizon Wireless Comments at 21, n.33.
96 Id. (indicating that the public safety licensee
could either use its existing allocation for the
partnership, or the Commission could reallocate the
D Block to public safety and license it to public
safety licensee).
97 See 700 MHz Ninth Public Safety Notice, 21
FCC Rcd at 14842–43 paras. 12–18; Second Report
and Order, 22 FCC Rcd at 15431 paras. 396–97;
Second FNPRM, 23 FCC Rcd at 8051–52 para. 6.
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jlentini on PROD1PC65 with PROPOSALS2
previously the many potential benefits
of broadband service to public safety,98
and the record in this proceeding
confirms the growing importance of
broadband communications to public
safety efforts.99 The Commission finds
that achieving a nationwide level of
interoperability among and between
public safety communications systems
and devices so that public safety entities
can communicate and coordinate their
activities, particularly in response to
emergencies, remains a critical
imperative.100 After considering the
results of Auction 73 and the record in
this proceeding, the Commission
tentatively conclude that a mandatory
public/private partnership between the
licensee or licensees of the D Block and
the licensee of the public safety
broadband spectrum (which the
Commission will again refer to as the
‘‘700 MHz Public/Private Partnership’’)
remains the best option available to us
to achieve these goals.
52. The Commission continues to find
that, as a regulatory approach for
promoting the development of a
nationwide, interoperable broadband
network for public safety, the basic
construct of the 700 MHz Public/Private
Partnership model has a number of
benefits. As the Commission stated in
the Second Report and Order, the use of
a shared infrastructure for both
commercial and public safety services
will enable a significant cost savings in
the construction of the network.101
Further, making the construction and
98 See 700 MHz Ninth Public Safety Notice, 21
FCC Rcd at 14842 para. 12 (‘‘police officers could
exchange mug shots, fingerprints, photographic
identification, and enforcement records; firefighters
could have access to floor and building plans and
real-time medical information; forensic experts
could provide high resolution photographs of crime
scenes and real-time video monitoring transmitted
to incident command centers.’’).
99 See, e.g., NAEMT Comments at 2 (‘‘EMS
communication’s future is broadband. To save time
in life-threatening situations, it will become
essential to use technologies now in development
to send data in addition to voice
communications.’’); see also Ericsson Comments at
3; NPSTC Comments at 6; PSST Comments at 4;
Testimony of Robert M. Gurss, Director, Legal &
Government Affairs, Association Of Public-Safety
Communications Officials-International, Inc., July
30, 2008, https://www.fcc.gov/realaudio/
presentations/2008/073008/gurss.pdf (‘‘Broadband
video, high speed images, Internet access, and data
of an endless variety would greatly enhance the
ability of police, fire, EMS and other personnel to
protect the public and respond to emergencies.’’).
100 See, e.g., Cellular South Comments at 1; PSST
Comments at 4; SIEC Comments at 1. See also
AASHTO Comments at 7 (‘‘Without a single
network using a common technology as its basis,
the Commission nation’s emergency response and
disaster relief workers will continue to be hampered
in their ability to respond to any call for assistance
in the wake of a natural or man caused situation.’’).
101 See, e.g., Second Report and Order, 22 FCC
Rcd at para. 396.
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operation of this network a license
condition will help to promote
development of public safety network
with access on a nationwide basis, lead
to economies of scale in network
infrastructure and equipment, and
provide a regulatory framework for
ensuring construction on a timely basis.
In addition, by providing the
commercial partner with secondary
preemptible access to the public safety
spectrum and providing public safety
limited priority access to the
commercial spectrum in times of
emergency, the 700 MHz Public/Private
Partnership furthers the important
public interest goal of maximizing
efficient and intensive spectrum use,102
without compromising safety or
commercial feasibility, resulting in a
total net benefit to public safety and
commercial entities. This approach may
also serve important commercial
interests, such as promoting the
availability of broadband services to
remote areas.
53. Most importantly, the Commission
finds that the 700 MHz Public/Private
Partnership remains the only means, in
the absence of legislative
appropriations, of obtaining funding for
the construction of a network or
networks to provide public safety with
nationwide, interoperable broadband
service. The record in this proceeding
confirms the limited availability of
public funding for the construction of a
public safety broadband network, and
the importance of the 700 MHz Public/
Private Partnership as a means to
promote commercial investment for that
purpose.103 The Commission notes that
several commenters have argued that
the public safety community’s need for
such funding is best addressed by
additional government appropriations
instead of through commercial
investment.104 While the Commission
agrees that government funding would
be a solution, the Commission is not
aware of any current appropriations for
such networks, and certainly none
102 See,
e.g., 47 U.S.C. 151, 309(j)(3)(D).
NAEMT Comments at 2 (‘‘No other
proposal for a national public safety broadband
system has suggested how to fund it other than the
FCC’s public/private partnership concept’’); see
also ACT Comments at 1; AT&T Comments at 3;
NATOA Comments at 21; PSST Comments at 4–5;
Sprint Nextel Comments at 10 (‘‘public/private
partnerships have been shown to be an effective
means of galvanizing resources in the
telecommunications and technology industries to
meet critical needs in the public sector.’’).
104 See, e.g., MetroPCS Comments at 6; Motorola
Comments at 5–6; RTG Comments at 3, n.3. See also
Verizon Wireless Comments at 30 n.52. Cf. Florida
Region 9 Comments at 3 (‘‘Without Federal funding
the Commission believes any public/private
partnership will fail the requirements of the
PSST.’’).
103 See
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sufficient to provide access on the scale
addressed by the 700 MHz Public/
Private Partnership proposal. Similarly,
Congress has not authorized the
Commission to use 700 MHz auction
funds for network construction.
Therefore, so long as there is a
reasonable likelihood of success with
the 700 MHz Public/Private Partnership
approach, the Commission declines to
abandon this course in favor of a
speculative approach that relies on
government funding that may not
materialize.
54. The Commission is also not
persuaded to rely solely on local and
state entities to build out their own
networks in the 700 MHz public safety
broadband spectrum as a substitute for
construction by mandatory public/
private partnerships. Although a few
jurisdictions such as New York City
have determined to use commercial
service providers to satisfy their
wireless broadband needs, none of these
jurisdictions have stated that these
networks provide anything more than
commercial-grade service, or that they
were able to achieve the economies of
scale and nationwide interoperability
inherent in the 700 MHz Public/Private
Partnership approach. As more and
more public safety agencies take
advantage of the benefits of broadband
applications, the Commission is
concerned that in the end the
Commission will again end up with
balkanized networks incapable of even
minimum interoperability.105 Again,
when faced with future calamities, the
Nation will continue to suffer from the
same dangerous shortcomings that were
encountered following natural and manmade disasters of the past because there
will remain no dedicated public safety
spectrum with a nationwide level of
interoperability. The Commission also
remains concerned that, due to the
funding issues discussed above, such
local or regional efforts will occur only
in a few jurisdictions, leaving most of
the country’s public safety community
without wireless broadband for the
foreseeable future. In contrast, the 700
MHz Public/Private Partnership rules
105 The Commission notes that existing rules
permit local jurisdictions to construct independent
networks operating over the 700 MHz public safety
broadband spectrum, with certain limitations and
conditions, in the event that the shared wireless
broadband network is not scheduled to cover the
relevant jurisdiction by the end of the D Block
license term. See 47 CFR 27.1330(b)(5). In addition,
these rules provide local jurisdictions with a
method, again with certain conditions, to construct
a network prior to the anticipated construction date
of the shared wireless broadband network in that
jurisdiction, subject to later integration. See id. As
discussed elsewhere, the Commission tentatively
concludes that the Commission should retain these
rules.
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proposed herein will provide a plan to
provide broadband coverage for public
safety entities on a significantly more
expanded basis than individual
agreements with commercial service
providers or buildout by individual
jurisdictions in the 700 MHz broadband
spectrum could achieve.
55. As noted above, some commenters
have argued that, whatever benefits the
700 MHz Public/Private Partnership
might possess, the model cannot be
made commercially viable except by
reductions in the network design and
coverage requirements that would
sacrifice its suitability as a public safety
network. The Commission recognizes
that, for the 700 MHz Public/Private
Partnership to achieve the objectives of
this proceeding, it must meet the
essential requirements of public safety
communications systems and also
provide a level of commercial viability
sufficient to encourage investor
participation and to permit long-term
commercial success in a competitive
environment. The Commission also
acknowledges that there is some tension
between these goals. To the extent that
the network is required to meet higher
standards for reliability, hardening,
security, and other features than are
being implemented in competing
commercial broadband networks, and to
build out in commercially unprofitable
areas, such costs will pose an additional
challenge to the commercial viability of
the network. The Commission also notes
that the financial challenges posed by
the construction and operation of the
shared wireless broadband network may
be exacerbated by the prevailing
condition of the nation’s economy
overall and its impact on the availability
of capital.106
56. Based on the record before us,
however, the Commission tentatively
concludes that it is possible to establish
requirements that are commercially
viable while still meeting the essential
requirements of public safety first
responders. First, the Commission
anticipates that a part, although likely
not all, of the incremental cost of
meeting public safety specifications and
construction will be accounted for in
the discounted price of the auctioned D
Block spectrum.107 In addition, the
Commission finds that certain
106 See
Council Tree Comments at ii.
APCO Comments at 37. But see Verizon
Wireless Comments at 8 (‘‘the D Block and public
safety broadband spectrum are not worth nearly
enough to offset the massive cost of building a
national broadband network to the mission-critical
specifications of public safety * * * even if the D
Block were given away for free,’’ and estimating the
incremental costs of hardening and build-out
beyond commercial footprints at over $20 billion).
See also APCO Comments at 37.
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107 See
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reductions or modifications of the
requirements in the existing rules are
consistent with the Commission’s
fundamental public safety objectives,
and will significantly improve the
commercial viability of the 700 MHz
Public/Private Partnership, thus
enhancing the likelihood that public
safety users will in fact receive the
benefits the Commission seeks to
achieve in this proceeding. The
Commission also expects that, to some
extent, additional public safety-related
requirements should provide some
degree of market advantage, particularly
to public safety users and others, such
as critical infrastructure users.108 The
Commission notes that despite the
Commission tentative conclusion that
entities such as critical infrastructure
users are not eligible for service as
public safety users, they may still
receive service as customers of the D
Block licensee(s).109
57. The Commission does find that
many of the specific problems noted by
commenters regarding the existing rules
governing 700 MHz Public/Private
Partnership present legitimate concerns.
The Commission tentatively concludes
that these issues can be successfully
addressed, however, through
appropriate rule modifications. On the
commercial side, the Commission
agrees, for example, that for potential
bidders to make an informed
determination regarding the viability of
108 See, e.g. SouthernLINC Reply Comments at ii,
4 (noting that, ‘‘given its hardened network and best
of class design, public safety agencies throughout
SouthernLINC’s territory have relied on
SouthernLINC for day-to-day and emergency
operations since the network became operational in
1995,’’ and that nearly one-quarter of its customer
base is comprised of ‘‘federal, state, and local
agencies’’). But see Motorola Comments at 4–5
(stating that the number of first responders is
‘‘insufficient * * * to amortize the high costs
associated with hardening the network and
constructing infrastructure covering over 99.3
percent of the U.S. population.’’).
109 The Commission note that the record provides
some evidence indicating that networks have
already been constructed that are both suitable for
public safety use and commercially viable.
SouthernLINC, for example, notes that since 1995,
it has operated a commercial network ‘‘specifically
designed to withstand the stressful weather
conditions caused by hurricanes in the Southeast,’’
with features ‘‘far more robust than a traditionallydesigned, commercial-grade network designed with
some additional redundancy.’’ SouthernLINC Reply
Comments at 3–4; but see id. at 4 (‘‘[a] true publicprivate partnership can work, but it is not easy, and
the Commission should recognize that this
proceeding may not be the right vehicle to make it
happen’’). In addition, PGCC, after reviewing the
results of a project to construct a Wi-Fi network
over a 30-mile corridor in Arizona for public safety
and other users, concluded that the ‘‘experience
supports the FCC position proposing to use D–
Block and the adjacent Public Safety spectrum for
nationwide broadband connectivity with
commercial ownership subject to Public Safety
constraints.’’ PGCC Comments at 11.
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the partnership, they must have
reasonable certainty and clarity
regarding their obligations under the
rules, and thus, the likely costs of
constructing and operating the shared
wireless broadband network. They also
need to have some ability to predict the
revenue potential of the shared wireless
broadband network. While the
Commission may not have provided
sufficient certainty on either of these
factors under the existing rules, the
Commission is persuaded that it is
possible to provide such certainty.
Conversely, regarding certain public
safety objections that the commercial D
Block licensee will not adequately serve
their interests, the Commission finds
that appropriate oversight measures,
including reporting requirements, can
address these concerns. Accordingly, in
the sections below, the Commission
addresses these issues in greater detail
and reaches tentative conclusions
regarding how best to implement the
700 MHz Public/Private Partnership to
respond to these concerns.
58. Though the Commission
tentatively concludes that it should
retain the public/private partnership
and assign commercial licenses for the
D Block by competitive bidding, the
Commission also seeks comment on
whether assigning licenses through a
Request for Proposal (RFP) process
would increase the likelihood of
successfully deploying a nationwide
interoperable broadband network
useable by public safety. The
Commission seeks comments on both a
detailed proposal for how the RFP
process would be conducted, as well as
why it would be superior to an auction
of licenses consistent with the rules
proposed herein. The Commission seeks
comment as well on whether any RFP
process would be consistent with the
Commission’s obligations under
Sections 309(j) and 337(a) with respect
to the allocation of spectrum and the
method of assigning D Block licenses.
B. Service Rules for the D Block
Licensee and the 700 MHz Public/
Private Partnership
1. Geographic Area for D Block License
59. Background. In the Second Report
and Order, the Commission determined
that the D Block license would be
auctioned as a single, nationwide
license.110 In the Second FNPRM, the
Commission revisited this decision, in
part, because no bidder matched the
reserve price the Commission set for the
110 Second Report and Order, 22 FCC Rcd at
15420 para. 369.
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D Block license.111 In addition to asking
if the Commission should retain the
single, nationwide license approach, the
Commission proposed authorizing the D
Block among multiple licensees and
asked several questions related to such
a proposal. The Commission asked what
size the license areas should be if the D
Block were split into regional licenses?
For instance, should the blocks be
Regional Economic Area Groups
(REAGs), Economic Areas (EAs), or
Cellular Market Areas (CMAs)? 112 The
Commission also sought comment on
whether the D Block should be split into
one license (or several licenses)
covering high-population density areas
and a second license (or set of licenses)
covering low-population density
areas.113 The Commission further
sought comment on whether the
Commission should modify any of the
policies or rules previously adopted or
proposed with respect to a D Block 700
MHz Public/Private Partnership to
ensure that the primary goal of a
national, interoperable, communications
network for public safety agencies is not
jeopardized.114
60. Commenters offer divergent views
on whether the Commission should
maintain the single, nationwide, license
approach or allocate the D Block
through multiple, smaller, regional
licenses. Sprint Nextel, Rural Cellular
Association (RCA), Ericsson, Inc.
(Ericsson), the PSST, the Association of
Public Safety Communications Officials
(APCO), National Public Safety
Telecommunications Council (NPSTC),
and most public safety organizations
prefer the single, nationwide license
approach because, they contend, it
should present the most cost effective
approach to designing a broadband
network that achieves interoperability
and connectivity across geographic
regions on a nationwide basis.115 Some
111 Second FNPRM, 23 FCC Rcd 8047, 8048–49
para. 1.
112 Second FNPRM, 23 FCC Rcd at 8111–12 para.
183.
113 Second FNPRM, 23 FCC Rcd at 8112 para. 185.
114 Second FNPRM, 23 FCC Rcd at 8112 para. 184.
115 APCO Comments at 40; see also, International
Municipal Signal Association, International
Association of Fire Chiefs, Inc., Congressional Fire
Services Institute, and Forestry Conservation
Communications Association (IMSA et al.)
Comments at 12; National Association of
Telecommunications Officers and Advisors,
National Association of Counties, National League
of Cities, and U.S. Conference of Majors (NATOA,
et al.,) Comments at 17; National Public Safety
Telecommunications Council (NPSTC) Reply
Comments at 9; Region 33, 700 MHz Planning
Committee (Region 33) Comments at 19–21;
Virginia Fire Chiefs Association (VFCA) Comments
at 3; Rural Cellular Association (RCA) Comments at
2; Sprint Nextel Comments at 11; Public Safety
Spectrum Trust Corporation (PSST) Reply
Comments at 12; Testimony of Chief Harlin R.
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commenters object to regional licensing
on grounds that some or even many
regions might go unsold at auction,
resulting in checkerboard coverage.116
NPSTC argues that integrating regional
networks would present technical and
logistical challenges and could take
years to implement.117
61. A number of commenters,
however, favor a regional approach.
AT&T, Verizon Wireless, and smaller
regional service providers, such as
MetroPCS, United States Cellular
Corporation US Cellular and Rural
Telecommunications Group (RTG),
prefer the multiple, regional license
approach for the D Block because,
among other reasons, regional licenses
would permit participation by smaller
providers, who may be unable to
compete on a nationwide scale, but may
have the resources to build regional
networks that could be leveraged to
rapidly deploy a nationwide system.118
US Cellular recommends that the
Commission adopt geographic areas that
align with the ‘‘55 National Public
Safety Planning Advisory Committee
(NPSPAC) regions.’’ 119 US Cellular
argues that these regions are of similar
size to MEAs and ‘‘with over two
decades of experience in meeting the
wireless needs of state and local public
safety authorities through [NPSPAC]
regional committees operating pursuant
to a national plan and FCC order, there
are also distinct advantages in aligning
D Block licenses with the NPSPAC.’’ 120
US Cellular and RTG also contend that
smaller license areas could lead to more
rapid deployment of public safety
communications networks in rural
areas.121
62. TeleCommUnity, a national
association of local governments, and
McEwen, Chairman, PSST FCC En Banc Hearing,
New York, July 30, 2008 at 2; Ericsson Comments
at 34; Council Tree Reply Comments at 13;
Intelligent Transportation Society of America (ITS
America) Reply Comments at 3.
116 See e.g. APCO Comments at 40.
117 NPSTC Reply Comments at 10.
118 AT&T Comments at 24–25; Verizon Wireless
Comments at 29–31; Verizon Wireless Reply
Comments at 11; Metro PCS Comments at 20; US
Cellular Comments at i, 15–16; RTG Comments at
ii, 1; NTCH Comments at 9–10; Testimony of
William J. Andrle, Jr. Northrop Grumman
Information Technology FCC En Banc Hearing, New
York, July 30, 2008 at 2.
119 US Cellular Comments at 2. US Cellular later
made an ex parte presentation in which it argued
that the Commission should license the D Block
through geographic areas that followed state
geographical boundaries. See Letter from Warren G.
Lavey, on behalf of US Cellular, to Marlene H.
Dortch, Secretary, WT Docket No. 06–150, filed
Aug. 29, 2008, Attachment at 3.
120 US Cellular Comments at i. See also AT&T
Reply Comments at 9; City of Philadelphia Reply
Comments at 6–7 & nn. 13, 16.
121 RTG Comments at ii, 4; US Cellular Comments
at 2.
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Charlotte, North Carolina, Houston,
Texas, and Montgomery County,
Maryland (TeleCommUnity), contends
that there are strong arguments for
allocating regional licenses, for the D
Block, as well as the single, nationwide
license approach.122 The New York City
Police Department (NYPD) and the City
of Philadelphia (Philadelphia) contend
that the Commission should adopt an
approach that permits local public
safety agencies to develop their
networks that would then interconnect
with other local public safety
agencies.123 These entities argue that a
single, nationwide license could impede
the development of their local public
safety networks.124 Coverage Co. and
Space Data Corp. ask the Commission to
adopt an approach that assigns one
license for urban or more populated
areas and another license for rural or
less populated areas.125 Other entities,
such as Google and Qualcomm, do not
appear to favor a single, nationwide
license or a multiple regional license
approach. They are more concerned that
the Commission establishes a public
safety broadband network that is
interoperable as soon as practicable.126
63. Discussion. The Commission
tentatively concludes that the
Commission should offer the D Block at
auction as both a single, nationwide
license and as regional licenses. The
Commission proposes that the regional
geographic areas would be comprised of
the 55 700 MHz RPC regions,127 and
122 TeleCommUnity
Comments at 13–14.
Reply Comments at 4–5; Philadelphia
Reply Comments at 8.
124 NYPD Reply Comments at 7–14; Philadelphia
Reply Comments at 5–8.
125 Coverage Co. Comments at 2; Space Data Corp.
Comments at 2–3, 12.
126 Google Comments at 3; Qualcomm Comments
at 8.
127 Although some commenters propose the use of
NPSPAC regions for licensing, the Commission
tentatively finds it more appropriate to use the
Regional Planning Committee (RPC) regions, which
are largely but not entirely identical. The
Commission notes that the NPSPAC regions were
established in connection with the 800 MHz public
safety spectrum. The term ‘‘NPSPAC’’ is an
acronym for the National Public Safety Planning
Advisory Committee, which was established by the
Commission in 1986 to advise the Commission on
rules for the 821–824 MHz/866–869 MHz band. See
Amendment of Parts 2 and 22 of the Commission’s
Rules Relative to Cellular Communications Systems
Amendment of Parts 2, 15, and 90 of the
Commission’s Rules and Regulations to Allocate
Frequencies in the 900 MHz Reserve Band for
Private Land Mobile Use Amendment of Parts 2, 22
and 25 of the Commission’s Rules to Allocate
Spectrum for, and to Establish Other Rules and
Policies Pertaining to the Use of Radio Frequencies
in a Land Mobile Satellite Service for the Provision
of Various Common Carrier Services, GEN Docket
No. 84–1231 RM–4812, GEN Docket No. 84–1233
RM–4829, GEN Docket No. 84–1234, Report and
Order, 2 FCC Rcd at 1825 para. 46 (1986). The 821–
824 MHz/866–869 MHz band was eventually
123 NYPD
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three additional regions, and to refer to
these 58 regions as PSRs for D Block
licensing purposes.128 The three
additional regions will cover (1) the
Gulf of Mexico; (2) the Territory of
Guam (Guam) and the Commonwealth
of Northern Mariana Islands (Northern
Mariana Islands); and (3) the Territory
of American Samoa (American Samoa),
and will be identical to the current
Economic Area (EA) licensing areas for
those same regions.
64. As the Commission explains
further below, the Commission finds
that both nationwide and PSR area
licenses have advantages that could
help achieve the public interest goal of
establishing a commercially viable
interoperable public safety broadband
network on a nationwide basis. Further,
while offering the D Block on a regional
basis raises the risk of unsold areas,
offering only a single, nationwide
license may increase the risk that there
are no bids on the D Block spectrum at
all. Accordingly, to provide the greatest
likelihood of success in offering new
licenses for the D Block spectrum with
a public/private partnership condition,
the Commission proposes to permit
entities to bid on both nationwide and
regional licensing options and to allow
auction results to determine on which
geographic area basis the D Block will
ultimately be licensed pursuant to
auction rules and procedures that the
licensed on a regional basis with the resulting
regions designated as NPSPAC regions. However,
the initial rules governing the 700 MHz public
safety spectrum, which included the regional
approach governing a portion of that spectrum,
were established in a separate proceeding. See
Development of Operational, Technical and
Spectrum Requirements For Meeting Federal, State
and Local Public Safety Agency Communication
Requirements Through the Year 2010, WT Docket
No. 96–86, First Report and Order and Third Notice
of Proposed Rulemaking, 14 FCC Rcd 152 (1998)
(700 MHz Public Safety First Report and Order and
Third Notice). The Commission tentatively finds
that the 700 MHz regions are the more appropriate
regional basis to use in the instant proceeding. As
noted above, the 700 MHz regions are almost, but
not quite, identical to the 800 MHz NPSPAC
regions. Although the NPSPAC regional boundaries
were used as the initial basis for the 700 MHz
public safety regions, see id. at 263, Appendix C
(List of Regions), two of the regions have since been
modified. See Public Notice, ‘‘Public Safety 700
MHz Band—General Use Channels Approval of
Changes to Regional Planning Boundaries of
Michigan and Connecticut,’’ 16 FCC Rcd 16359
(2001). The Commission proposal would thus
license the D Block in accordance with these
regional boundaries as modified for Connecticut
and Michigan. As for terminology, because the
NPSPAC was not involved in the 700 MHz
proceeding, it would be a misnomer to identify
these 700 MHz geographic areas as NPSPAC
regions. It is more accurate to refer to the regions
as RPC regions because the spectrum allocation in
these areas is governed by the RPCs. See 47 CFR
90.531.
128 See Appendix A.
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Commission explains elsewhere in this
Third FNPRM.
65. Nationwide Option. The
Commission tentatively concludes that
one of the D Block geographic license
area options that parties should be able
to bid upon is a single, nationwide
license. The Commission proposes to
offer a nationwide D Block license
because the record in this proceeding
reaffirms that the Commission can
achieve its goals for the public safety
broadband network through this type of
license.129 In particular, one of the
Commission’s primary goals for the
authorization of the D Block is to
‘‘address a vitally important problem:
promoting interoperability, on a
nationwide basis, for public safety
communications.’’ 130 The record in
response to the Second FNPRM
supports the Commission’s previous
determination that interoperability is a
critical need for the public safety
broadband network and that assigning
the D Block to a single, nationwide
licensee may help to facilitate achieving
nationwide interoperability both within
and between jurisdictions. The
Commission notes that the majority of
public safety agencies assert that a
single, nationwide license is the best
way to achieve an interoperable
network.131 Although the Commission
tentatively finds that it is possible to
achieve interoperability between
regional networks, a nationwide license
would likely simplify the task of
ensuring interoperability and avoid
problems in its implementation. For
example, it would eliminate the need
for technology coordination, roaming
arrangements, and interconnection
arrangements between different regional
networks.
66. Licensing the D Block on a
nationwide basis could also help to
achieve the other goals that the
Commission has for the public safety
broadband network, i.e., that it be cost
effective, spectrally efficient, flexible
and employ an advanced IP-based
129 Second Report and Order, 22 FCC Rcd at
15420 para. 369. Thus, the license will cover the
50 states, the Gulf of Mexico, and the territories.
130 Second FNPRM, 23 FCC Rcd at 8051 para. 5;
see also Second Report and Order, 22 FCC Rcd at
15419 para. 365. In addition, in the 700 MHz Public
Safety Eighth Notice adopted in March 2006, the
Commission emphasized its commitment ‘‘to
ensuring that emergency first responders have
access to reliable and interoperable
communications.’’ 700 MHz Public Safety Eighth
Notice, 21 FCC Rcd at 3682 para. 31; see also,
Second FNPRM, 23 FCC Rcd at 8051 para. 4;
Second Report and Order, 22 FCC Rcd at 15420
para. 369; 700 MHz FNPRM, 22 FCC Rcd at 8156
para. 253.
131 See, e.g., APCO Comments at 40; IMSA et al.
Comments at 12; NATOA, et al. Comments at 10.
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network.132 A single, nationwide license
may provide opportunities for cost
savings through elimination of
redundant equipment (e.g., mobile base
station deployments in the event of
natural disasters), processes (billing,
etc.) or staff (e.g., public safety support),
and greater economies of scale for
network equipment or handsets.133
These cost savings might enhance the
ability of the D Block licensee to rapidly
build the public safety broadband
network in rural, expensive-to-serve,
less populated areas. The Commission
therefore tentatively concludes that the
economies of scale that a commercial
entity could achieve through a single,
nationwide license could promote the
rapid deployment of an advanced
nationwide public safety broadband
network.
67. In addition, a single, nationwide
license could facilitate coordination
between the D Block licensee, the Public
Safety Broadband Licensee, and the
public safety agencies that use the
network. As discussed elsewhere in this
Third FNPRM, the public/private
partnership concept requires the D
Block licensee to establish an NSA with
the Public Safety Broadband Licensee
and, thereafter, coordinate with the
Public Safety Broadband Licensee to
ensure that the network effectively
serves the interests of the public safety
community. The coordination scheme
envisioned for the D Block could be
particularly efficient if there were only
one licensee required to coordinate and
negotiate with the Public Safety
Broadband Licensee and local public
safety agencies.
68. Some wireless service providers
argue that the single, nationwide license
will not work because, in their opinion,
no single entity would find it
commercially viable to develop a
nationwide public safety
communications network with the
technical requirements and other rules
that the Commission had imposed, in
the Second Report and Order, on the D
Block.134 As the Commission discusses
in more detail, elsewhere, the
Commission has made substantial
changes to the technical specifications
and performance requirements that
should help make the single,
nationwide license more commercially
viable. These policies should ease the
132 Second Report and Order, 22 FCC Rcd at
15420 para. 369.
133 See Second Report and Order, 22 FCC Rcd at
15298, 15324 paras. 20, 82 (explaining how larger
geographic service areas permit service providers to
establish economies of scale).
134 AT&T Comments at 7–8; Verizon Wireless
Comments at 7–8, 24–31.
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burdens on a single, nationwide D Block
licensee.
69. Public Safety Region Option. The
Commission tentatively conclude that
the Commission should revise the
Commission rules to also provide the
option of regional geographic area
licensing of the D Block on the basis of
58 PSRs, 55 regions of which would
correspond to the 55 RPC regions, and
which would include three additional
regions covering (1) the Gulf of Mexico;
(2) Guam and the Northern Mariana
Islands; and (3) American Samoa.135 As
the Commission explains further below,
PSR licensees could lead to a rapid
deployment of the public safety
broadband network that is tailored to
respond to the public safety
communications needs of particular
regions.
70. The Commission’s proposal to
permit licensing of the D Block on a
regional basis is based on several
factors. Section 309(j) of the
Communications Act instructs that, in
designing competitive bidding systems,
the Commission should consider the
dissemination of licenses among a wide
variety of applicants when that
consideration would serve the public
interest.136 Regional licensing could
allow smaller commercial entities that
do not have the resources to acquire a
nationwide license and meet
nationwide performance requirements
to participate in bidding for D Block
licenses, thereby increasing the chances
of a successful public/private
partnership for at least the majority of
the nation. In addition, regional
licensing could lead to enhanced buildout and faster deployment to less
populated, rural areas. Those entities
interested in a larger geographic
footprint can bid on, and if successful,
aggregate multiple PSR regional
licenses. The record in response to the
Second FNPRM demonstrates that
nearly all nationwide carriers and
several regional carriers, which filed
comments, support licensing on a
regional basis.137 As the Commission
jlentini on PROD1PC65 with PROPOSALS2
135 See
Appendix A.
136 47 U.S.C. 309(j)(3)(B); Service Rules for the
746–764 and 776–794 MHz Bands, and Revisions to
Part 27 of the Commission’s Rules, First Report and
Order, 15 FCC Rcd 476, 500 para. 57 (2000).
137 AT&T, Inc., (AT&T) Comments at 24–25;
Verizon Wireless Comments at 29–31; Verizon
Wireless Reply Comments at 11; Metro PCS
Comments at 20; U.S. Cellular Comments at i, 15–
16; Rural Telecommunications Group, Inc. (RTG)
Comments at ii, 1; NTCH, Inc., (NTCH) Comments
at 9–10; Testimony of William J. Andrle, Jr.
Northrop Grumman Information Technology FCC
En Banc Hearing, New York, July 30, 2008 at 2.
Among the carriers offering nationwide service
plans, who filed comments in this proceeding, only
Sprint Nextel supports nationwide licensing. See
Sprint Nextel Comments at 11.
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explains elsewhere, in order to ensure
that authorizing the D Block through
multiple, regional licenses will achieve
nationwide interoperability, the
Commission has proposed roaming and
certain other interoperability
requirements for D Block licenses. In
order to reduce the possibility that
regional licensing of the D Block might
result in large areas that are unserved by
the public safety broadband network,
the Commission tentatively concludes
that an auction of the D Block spectrum
must result in winning D Block license
bidders with licenses covering at least
50 percent of the nationwide population
or the results of the auction will be
void.138
71. In addition, regional D Block
licensees could be particularly
responsive to the unique needs of state,
regional, and local public safety
agencies. Regional licensees could
coordinate with local public safety
entities and ensure that public safety
communications are tailored to meet
unique local needs in particular
geographic areas. PSR licensees may, for
example, take into account regional
differences in terrain and public safety
needs in determining how to set up and
operate the system, which could be
more cost effective in certain respects
and better suited to regional needs than
a one-size fits-all system. PSR licenses
may also be more desirable because the
assignment of a single, nationwide, D
Block license may increase risks of
disruption for public safety entities in
the event the single nationwide operator
is commercially unsuccessful. Having
regional licensees, with license areas
mostly following state jurisdictional
boundaries, may also address certain
concerns in the record that the
development of the nationwide public
safety broadband network should not
impede the existing networks that some
local agencies have spent substantial
resources deploying.139
72. Assigning the D Block through
PSR licenses that are geographically
aligned with the 55 RPC regions could
further enhance the responsiveness of
the PSR licensees to the public safety
communications needs of their specific
geographic regions and facilitate the
development of an interoperable public
138 See Letter from Warren G. Lavey, on behalf of
U.S. Cellular, to Marlene H. Dortch, Secretary, FCC,
WT Docket No. 06–150, filed July 28, 2008,
Attachment at 9 (suggesting that the Commission
should set a minimum population threshold in
determining if the auction results for the D Block
should stand).
139 See, generally, District Comments; see also
Prepared Testimony of John J. Farmer, Former
Attorney General, New Jersey; Senior Counsel, 9/11
Commission, at 3, FCC En Banc Hearing (July 30,
2008).
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safety broadband network. The
Commission created the RPC regions for
700 MHz public safety general use
spectrum to maximize the efficiency of
public safety’s use of this spectrum and
to foster the accommodation of a wide
variety of localized public safety
communications requirements in
different areas of the Nation. Creating
regional D Block licenses whose
boundaries correspond with those of the
RPC regions should facilitate interaction
between the PSR licensees and the
existing RPCs. The Commission
anticipates that these regional entities
have considerable institutional
knowledge about the communications
needs and concerns of public safety
entities within their jurisdictions. PSR
licensees could coordinate with them
for their respective licensing area to
learn about any public safety
communications challenges or needs
that might be specific to the particular
region. RPCs might also help the Public
Safety Broadband Licensee and PSR
licensees negotiate the build-out
schedule, fees, and other terms of their
respective NSAs that would be tailored
for a particular PSR region. RPCs could
also share with PSR licensees
approaches towards establishing interregional interoperability that have been
more successful than others.140
73. License Partitioning and
Disaggregation. The Commission
tentatively concludes that it would not
serve the public interest to change the
current rule governing D Block
partitioning and disaggregation, and
thus to continue prohibiting any
partitioning and disaggregation of a D
Block license. The Commission seeks
comment on this conclusion.
74. Other Geographic Area Proposals.
The Commission tentatively concludes
that it would not serve the public
interest to split the D Block into one
license for a high-population density
area and a second license covering lowpopulation density, rural areas, as
Coverage Co. and Space Data request.141
140 See AT&T Reply Comments at 9 (arguing that,
if the Public/Private Partnership is able to take
advantage of the organizational structure already in
place among the RPCs, ‘‘the RPCs will facilitate
interoperability and coordination between adjacent
regions and public safety agencies, while ensuring
that local public safety users have a voice in the
design and functionality of the services offered over
the network.’’).
141 Coverage Co. Comments at 2; Space Data
Comments at 2, 13–15; Space Data Reply Comments
at 2. Coverage Co. is a provider of software-defined
radio (SDR) technology services and it claims that
its technology would allow a commercial wireless
network to operate on both CDMA and GSM
systems. Coverage Co. Comments at 4–5. Space Data
uses a ‘‘balloon-based ‘near space’ communications
system’’ to provide ‘‘wireless services in the South
Central United States.’’ Space Data Comments at 4.
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Coverage Co. and Space Data’s
proposals do not specify the boundaries
of the geographic areas that the two
licenses would cover, which could
present uncertainties for potential
bidders and lead to disputes. In
addition, there is a substantial question
about the commercial viability of these
two-license approaches. Coverage Co.
and Space Data do not appear to argue,
and the arguments they make do not
demonstrate, that their two-license
proposals are more commercially viable
than the regional approach the
Commission proposes. Also, the record
does not indicate that commenters,
other than Coverage Co. and Space Data,
support these specific two-license
proposals. Based on the record and the
unique characteristics of this
proceeding, such as the important
obligations of the public/private
partnership licensees, the Commission
would need a stronger record, before
deciding that it should adopt a
geographic area licensing scheme that is
significantly different from the schemes
the Commission has employed in the
past.142
75. Finally, the Commission
tentatively concludes that it would not
serve the public interest to offer license
areas that are smaller than PSRs in the
reauction of the D Block. Although the
record indicates that some entities have
an interest in the Commission assigning
the D Block by offering 493 BTAs,143
176 EAs,144 and 736 CMA licenses,145
smaller license areas may make it more
difficult to achieve nationwide
interoperability. Assigning hundreds of
smaller license areas could also
exacerbate coordination issues that
142 Implementation of Section 6002(b) of the
Omnibus Budget Reconciliation Act of 1993,
Annual Report and Analysis of Competitive Market
Conditions with Respect to Commercial Mobile
Services, Twelfth Report, 23 F.C.C.R. 2241, 2286
para. 97 (2008) (Twelfth Report).
143 AT&T Comments at 24 (recommending EAs
and CMAs as options for the geographic area
license); Coleman Bazelon Comments at 24 (CMA
licenses); RTG Comments at ii, 5 (requesting
CMAs); Wirefree Comments at 12–14 (requesting
CMAs); NTCH Comments at 11 (requesting BTAs);
see also, In the Matter of Inquiry Concerning the
Deployment of Advanced Telecommunications
Capability to All Americans in a Reasonable and
Timely Fashion, and Possible Steps to Accelerate
Such Deployment Pursuant to Section 706 of the
Telecommunications Act of 1996, Fifth Report, FCC
08–88, 2008 WL 2404499 (rel. June 12, 2008), at
para. 52 (indicating there are 493 BTAs).
144 See ‘‘Auction of 700 MHz Band Licenses
Scheduled for January 16, 2008; Comment Sought
on Competitive Bidding Procedures For Auction
73,’’ Public Notice, FCC Rcd 15004 (WTB 2007)
(indicating there are 176 EAs).
145 See ‘‘Auction of 700 MHz Band Licenses
Scheduled for January 16, 2008; Comment Sought
on Competitive Bidding Procedures For Auction
73,’’ Public Notice, FCC Rcd 15004 (WTB 2007)
(indicating there are 736 CMAs).
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might arise among the D Block
licensees, the Public Safety Broadband
Licensee, and public safety agencies that
would be involved with the policies and
operation of the network. Moreover,
license areas smaller than the PSRs
might increase the possibility that some
license blocks will not be sold in the
reauction.
2. Requirements for the Shared Wireless
Broadband Network
a. Spectrum Use Issues
(i) Combined Spectrum Use
76. Background. In the Second Report
and Order, the Commission determined
that promoting commercial investment
in the build-out of a shared network
infrastructure for both commercial and
public safety users through the 700 MHz
Public/Private Partnership would
address ‘‘the most significant obstacle to
constructing a public safety network—
the limited availability of public
funding.’’ 146 The Commission
concluded that providing for a shared
infrastructure using the D Block and the
public safety broadband spectrum
would help achieve significant cost
efficiencies, allow public safety agencies
to take advantage of off-the-shelf
technology, provide the public safety
community with access to an additional
10 megahertz of broadband spectrum
during emergencies, and provide the
most practical means of speeding
deployment of a nationwide,
interoperable, broadband network for
public safety service by providing all of
these benefits on a nationwide basis.147
At the same time, the Commission
pointed out that the 700 MHz Public/
Private Partnership would provide the D
Block licensee with rights to operate
commercial services in the 10 megahertz
of public safety broadband spectrum on
a secondary, preemptible basis, which
would both help to defray the costs of
build-out and ensure that the spectrum
is used efficiently.148
77. In the Second FNPRM, the
Commission sought comment on
whether, to provide the D Block licensee
with appropriate flexibility to achieve
an efficient and effective
implementation of the 700 MHz Public/
Private Partnership obligations, the
Commission should amend the rules to
clarify that the D Block licensee may
construct and operate the shared
wireless broadband network using the
entire 20 megahertz of D Block spectrum
and public safety broadband spectrum
146 Second
Report and Order, 22 FCC Rcd at
15431 para. 396.
147 Id.
148 Id.
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as a combined, blended resource.149 In
particular, the Commission sought
comment on whether, in designing and
operating the shared network, the 10
megahertz of D Block spectrum and the
10 megahertz of public safety broadband
spectrum may be combined, in effect,
into a single and integrated 20
megahertz pool of fungible spectrum.150
This pool of spectrum could then be
assigned to users without regard to
whether a public safety user is being
assigned frequencies in the D Block or
a commercial user is being assigned
frequencies in the public safety
broadband spectrum.151 These
assignments would be permissible so
long as the network provides
commercial and public safety users with
service that is consistent with the
respective capacity and priority rights of
the D Block license and Public Safety
Broadband License and with the
Commission rules.152 The Commission
sought comment on whether permitting
the combined use of spectrum in this
fashion would provide for a more
efficient and effective use of
spectrum.153 The Commission also
sought comment on whether such a
combined use would be consistent with
the different rights and obligations
associated with the D Block license and
the Public Safety Broadband License
and whether it would be in the public
interest to allow such use.154 The
Commission asked whether permitting
such combined use would be consistent
with the requirements of Sections 337(a)
and (f) and the Commission rules
allotting specific frequencies for use by
the Public Safety Broadband Licensee
and the D Block licensee.155
78. Comments. In response to Second
FNPRM, the Commission received broad
support for clarifying that the D Block
licensee may construct and operate the
shared wireless broadband network
using the entire 20 megahertz of D Block
spectrum and public safety broadband
spectrum as a combined, blended
resource.156 These commenters note that
allowing the combined flexible use of
spectrum will promote efficient use of
the spectrum and make the D Block
license more commercially attractive
149 Second
FNPRM, 23 FCC Rcd at 8077 para. 80.
150 Id.
151 Id.
152 Id.
153 Id.
at 8077 para. 81.
154 Id.
155 Id.
156 ALU Comments at 8–9; Google Comments at
4–5; Ericsson Comments at 17, 24 n.56; Hypres
Comments at 7; Motorola Comments at 10–11;
SouthernLINC Reply Comments at 9–10. But see TE
M/A–COM Comments at 8 (arguing against a
combined network).
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a D Block licensee should also be able
to conserve costs. This improved
flexibility, efficiency, and cost should
make the license more attractive to
potential bidders.164
jlentini on PROD1PC65 with PROPOSALS2
while facilitating priority access and
preemption.157 Supporters of this
approach included members of the
public safety community.158 In addition,
Google and Alcatel Lucent note that this
approach is consistent with the
Communications Act.159
79. Discussion. Based on the record,
the Commission tentatively concludes
that a D Block licensee may construct
and operate the shared wireless
broadband network using the entire 20
megahertz of D Block spectrum and
public safety spectrum as a combined,
blended resource. That 20 megahertz of
spectrum may be assigned to users
without regard to whether a public
safety user is assigned frequencies in the
D Block or a commercial user is
assigned frequencies in the public safety
broadband spectrum, so long as 50
percent of the capacity available from
the combined 20 megahertz of spectrum
is assigned to the public safety users
and the other 50 percent to the
commercial users, consistent with the
respective capacity and priority rights of
the D Block license and the Public
Safety Broadband License and with the
Commission rules.160
80. The Commission agrees with the
commenters 161 who conclude that
permitting the combined use of
spectrum in this fashion provides for a
more efficient and effective use of
spectrum and provides further
flexibility for a D Block licensee to use
all available wireless broadband
technologies to build and operate the
network and thus promote the
Commission’s ultimate goal of making
available a nationwide interoperable
broadband network for public safety
users. If given the flexibility of
undivided spectrum, a D Block licensee
can use the best available network
management technologies to allocate
and prioritize users efficiently across
the full 20 megahertz of spectrum,162
thereby increasing throughput and
capacity over what can be achieved with
two separate 10 megahertz networks.163
Further, the Commission expects that by
focusing its resources on a blended
network design rather than a network
that must carefully segregate different
services into separate frequency bands,
81. Background. In the Second Report
and Order, the Commission required the
D Block licensee to provide the Public
Safety Broadband Licensee with priority
access during emergencies to the
spectrum associated with the D Block
license (in addition to the 700 MHz
public safety broadband spectrum).165
82. In the Second FNPRM, the
Commission sought comment on
whether the Commission should
continue to require the D Block licensee
to provide the Public Safety Broadband
Licensee with priority access during
emergencies to the spectrum associated
with the D Block license.166 The
Commission invited comment on
whether this obligation is essential to
ensure that the network capacity will
meet public safety wireless broadband
needs.167 The Commission asked,
alternatively, whether removing the
obligation could significantly improve
the chances that this proceeding will
succeed in achieving the Commission’s
goal of making available to public safety
users a nationwide, interoperable,
broadband network that incorporates
the greater levels of availability,
robustness, security, and other features
required for public safety services.168
The Commission sought further
comment on whether, if the
Commission continues to require that
the D Block licensee provide the Public
Safety Broadband Licensee with priority
access during emergencies to the
spectrum associated with the D Block
license, the Commission should provide
more clarity on the circumstances that
would constitute an ‘‘emergency’’ for
this purpose.169
83. Comments. In response to Second
FNPRM, the Commission received
comments generally supporting the idea
of providing public safety entities with
some additional spectrum capacity for
emergency needs,170 but parties
157 See ALU Comments at 8; Google Comments at
4–5; Ericsson Comments at 24 n.56.
158 NRPC Comments at 6; APCO Comments at 27.
159 Google Comments at 4–5; ALU Comments at
8–9.
160 Second FNPRM, 23 FCC Rcd at 8077, para. 80.
161 ALU Comments at 8; Google Comments at 4–
5; NRPC Comments at 6; Ericsson Comments at 17–
18; Hypres Comments at 7; SouthernLINC Reply
Comments at 9–10.
162 See ALU Comments at 8.
163 See Ericsson Comments at 17.
164 See Google Comments at 4; SouthernLINC
Reply Comments at 9–10.
165 Second Report and Order, 22 FCC Rcd at
15441–42 paras. 426–27.
166 Second FNPRM, 23 FCC Rcd at 8079, para. 85.
167 Id.
168 Id.
169 Id. at 8079–80, para. 86.
170 PSST Comments at 32; Seybold Comments at
2–3; RPC 33 Comments at 10; AASHTO Comments
at 13; NATOA et al. Comments at iv; SDR Forum
Comments at 10, 16; PGCC Comments at 12;
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(ii) Priority Public Safety Access to
Commercial Spectrum During
Emergencies
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diverged on the extent of such access.
While the public safety community
generally agrees that public safety users
should have at least some priority
access in emergencies to the spectrum
associated with the D Block,171 they are
divided on whether geographic and time
limits should be established.172 PSST
argues that ‘‘public safety priority access
during emergency situations should be
limited to 70% of total network capacity
[or 40% of the D Block capacity] and
that public safety preemption rights
should not exceed 50% of the network
capacity.’’ 173 APCO proposes avoiding
the difficulties in defining the contours
of emergency priority access by
allowing both public safety and
commercial users to take advantage of
any available channels in the combined
20 megahertz spectrum when traffic is
low, but restricting each set of users to
10 megahertz during periods of high
traffic.174 APCO argues that public
safety users should have priority access
to all 20 megahertz only in rare
circumstances.175 The Commission
notes that several commenters suggest
the possibility of using technology to
dynamically prioritize signals
throughout the network.176
84. Other commenters argue that
unlimited emergency priority access to
the capacity set aside for commercial
use would undermine the commercial
viability of the network and the success
Televate Comments at 11; NTCH Comments at 4;
AT&T Reply Comments at 18; NPSTC Comments at
12; Ericsson Comments at 25; NATOA et al. Reply
Comments at 11; Verizon Wireless Reply Comments
at 7; But see Bazelon Comments at 1–2, 22 (arguing
that a priority access requirement would
inappropriately diminish the value of the D Block
for commercial entities, thereby reducing the
likelihood of a winning bid as well as proceeds to
use to support a public safety network).
171 PSST Comments at 32; Seybold Comments at
2–3; RPC 33 Comments at 10; AASHTO Comments
at 13; NATOA et al. Comments at iv; SDR Forum
Comments at 10, 16; PGCC Comments at 12;
Televate Comments at 11; NTCH Comments at 4;
AT&T Reply Comments at 18; NPSTC Comments at
12; Ericsson Comments at 25; NATOA et al. Reply
Comments at 11; Verizon Wireless Reply Comments
at 7; But see Bazelon Comments at 1–2, 22 (arguing
that a priority access requirement would
inappropriately diminish the value of the D Block
for commercial entities, thereby reducing the
likelihood of a winning bid as well as proceeds to
use to support a public safety network).
172 See RPC 33 Comments at 17–18 (supporting
limitations); Wireless RERC Comments at 12 (same).
But see AASHTO Comments at 12–13 (noting that
any limitations could hinder safety operations in
the event of an emergency).
173 PSST Reply Comments at ii, 7–8. PSST stated
in it initial comments that ‘‘it is reasonable to limit
priority access for public safety to 70% of overall
network capacity of the SWBN, or just 40% of the
D Block spectrum capacity.’’ PSST Comments at 33.
174 APCO Comments at 27–28. But see NATOA et
al. Reply Comments at 11.
175 APCO Comments at 27–28.
176 SDR Forum Comments at 16, 25, 27; AT&T
Comments at 13; NPSTC Comments at 47–48.
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of the Public/Private Partnership.177
AT&T and Alcatel-Lucent recommend
that the Commission model that priority
access after the Department of
Homeland Security’s Wireless Priority
Service,178 which allows government
officials to contract with CMRS
providers for priority
telecommunications services.179 With
regard to geographic limitations,
Ericsson argues ‘‘that priority access
should be limited to specific geographic
areas affected by serious emergencies, to
avoid jeopardizing the commercial
viability of the 700 MHz Public/Private
Partnership, and that priority access
should be properly limited to the area
directly affected by the emergency.’’ 180
As to bandwidth limitations, some
propose that at least 50 percent of the
capacity be prioritized for public safety
use.181
85. Several commenters also argue
that the Commission should define the
specific circumstances that constitute an
‘‘emergency’’ before conducting an
auction,182 suggesting several methods
to achieve this goal. Others argue that
the parties should decide this issue for
themselves,183 and one commenter
177 Leap Wireless Comments at 13–14 (arguing
argues that public safety users should be allowed
priority access to only 50% of available network
capacity, ‘‘with no other preemption requirements
on the network’’); Verizon Wireless Comments at 9
(‘‘providing priority access to public safety users on
a preemptive basis reduces the value of the network
to their commercial counterparts’’); Motorola
Comments at 8; but see Sprint Nextel Comments at
14–15 (proposing that the D Block auction winner
offer ‘‘near real-time prioritization,’’ under which
the D Block licensee moves ‘‘all commercial traffic
off network within ten minutes of receiving a call
from authorized public safety officials’’) But see
Verizon Wireless Reply Comments at 7 (noting that
reducing priority access to 50% of the network
‘‘would frustrate the very purpose of building a new
dedicated public safety network.’’).
178 See https://wps.ncs.gov/.
179 AT&T Comments at 13; see also ALU
Comments at 9–10; AT&T Reply Comments at 18
n.59.
180 Ericsson Comments at 23.
181 Motorola Comments at 10. Ericsson further
argues that ‘‘the priority access and preemption for
public safety can be applied on the entire 20 MHz’’
and that ‘‘3GPP standards provide automatic
methods for providing such priority access and
preemption.’’ Ericsson Comments at 24. But see
CEA Comments at 3 (‘‘the Commission should limit
public safety’s priority access to D Block spectrum
in emergencies to 50 percent of the commercial D
Block capacity.’’)
182 See AT&T Comments at 13; Qualcomm
Comments at 10–11; Google Comments at 6–7;
NRPC Comments at 9–10; Bazelon Comments at 1;
Wireless RERC Comments at 11; APCO Comments
at 26. But see Leap Wireless Comments at 13–14.
RPC 33 proposes that an emergency exists anytime
lives or ‘‘significant property’’ is at risk, but that the
decision should be made locally, rather than by a
national board. RPC 33 Comments at 17.
183 Qualcomm Comments at 10–11. Televate
similarly argues that commercial bidders should
submit before the auction proposals that state under
what conditions they will allow priority access to
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argues that emergencies should be
declared only by senior levels of state or
local government.184 Some commenters
agree that the specific situations listed
in the Second FNPRM 185 could be
considered an emergency.186
86. Discussion. Based on the record,
the Commission tentatively concludes
that emergency access to the D Block
commercial capacity should be
mandated only in the event of an
‘‘emergency,’’ as that term was defined
in the Second FNPRM, specifically:
• The declaration of a state of
emergency by the President or a state
governor.
• The issuance of an evacuation order
by the President or a state governor
impacting areas of significant scope.
• The issuance by the National
Weather Service of a hurricane or flood
warning likely to impact a significant
area.
• The occurrence of other major
natural disasters, such as tornado
strikes, tsunamis, earthquakes, or
pandemics.
• The occurrence of manmade
disasters or acts of terrorism of a
substantial nature.
• The occurrence of power outages of
significant duration and scope.
• The elevation of the national threat
level to either orange or red for any
portion of the United States, or the
elevation of the threat level in the
airline sector or any portion thereof, to
red.
87. The Commission tentatively
concludes that for the first two
conditions and when the national or
airline sector threat is set to red, the D
Block licensee(s) must provide public
safety users priority access 187 to, but
not preemptive use of, up to 40 percent
of the commercial D Block spectrum
capacity (i.e., 2 megahertz in each of the
uplink and downlink blocks), assuming
the full public safety broadband block
spectrum capacity is being used, for an
their networks. Televate Comments at 11. NPSTC
agrees that the Commission should define certain
circumstances that would constitute an emergency
‘‘after consultation with the PSBL and D Block
licensee, and in circumstances the PSBL has
defined and Commission approves prior to the D
Block auction.’’ NPSTC Comments at 12–13.
184 NPSTC Comments at 12–13.
185 See Second FNPRM, 23 FCC Rcd at 8079–80
para. 86.
186 Ericsson Comments at 23–24; California
Comments at 6. The Wireless RERC urges, however,
that the terms ‘‘significant’’ and ‘‘substantial,’’ as
used in the Second FNPRM, be further clarified or
deleted from the descriptions of those situations.
Wireless RERC Comments at 12.
187 To be clear, by ‘‘priority access,’’ the
Commission mean that the public safety user would
be assigned the next available channel over a
commercial user—i.e., the public safety user would
be placed at the top of the queue—and would not
preempt a commercial call in progress.
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57767
aggregate total of 14 megahertz of
overall network capacity.188 For all
other emergencies listed above, the D
Block licensee(s) must provide priority
access to, but not preemptive use of, up
to 20 percent of the commercial
spectrum capacity (i.e., 1 megahertz in
each of the uplink and downlink
blocks). Furthermore, under either
scenario, the right to emergency-based
priority access must be limited to the
time and geographic scope of the
emergency. To trigger emergency-based
priority access, the PSBL will request,
on behalf of the impacted public safety
agencies, that the D Block licensee
provide such access. Priority access
requests initiated by the PSBL will
cover a 24-hour time period, and must
be reinitiated by the PSBL for each 24hour time period thereafter that the
priority access is required. In the event
that the D Block licensee and the PSBL
do not agree that an emergency has
taken place, the PSBL may ask the
Defense Commissioner to resolve the
dispute.
88. The Commission expects that the
instances under which emergency-based
priority access would be triggered under
the definition the Commission
tentatively proposes above will be
relatively infrequent. Moreover, the
Commission agrees generally with
APCO that through responsible capacity
management that permits public safety
user groups to prioritize their regional
and local use of the shared wireless
broadband network, and which is
embedded into the network prior to
deployment, it will be possible to
provide critical services using no more
than the ten megahertz public safety
portion of the shared wireless
broadband network under virtually all
but the rarest of circumstances.189 At
188 See PSST Comments at iii, 16 n.28, 33
(explaining that ‘‘it is reasonable to limit priority
access for public safety to 70% of overall network
capacity of the SWBN, or just 40% of the D Block
spectrum capacity.’’); PSST Reply Comments at ii
(‘‘public safety priority access during emergency
situations should be limited to 70% of total network
capacity and that public safety preemption rights
should not exceed 50% of the network capacity.’’).
189 See APCO Comments at 28–29. APCO
recommended that in circumstances under which
‘‘sector loading increases and service contention
starts to occur, there [should be] a[n] immediate
transition to a hard partition state’’ where
commercial and public safety use of the shared
wireless broadband network would revert to 50%
of the paired spectrum (i.e., where commercial
users accessed only the ten megahertz of D Block
spectrum and public safety users accessed only the
ten megahertz of public safety broadband
spectrum). The only instances in which this ‘‘hard
partition’’ would be removed, allowing public
safety users priority access some portion of the
commercial D Block spectrum, would be pursuant
to Presidential Order or ‘‘by any other existing
means where government can seize control of
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the same time, the Commission
proposed approach should continue to
guarantee additional network capacity
to meet public safety wireless
broadband needs in the most serious
emergencies. The Commission notes, for
example, that both of the circumstances
cited by the PSST—the events of
September 11, 2001, and Hurricane
Katrina—would have met the standard
the Commission proposes. 190
89. In light of the fact that the
Commission expects public safety use of
the priority access mechanism to be
infrequent, the Commission believes it
should not require public safety users of
priority access to pay an additional
charge to the D Block licensee for such
use over and above the basic monthly
service charge discussed elsewhere in
this Third FNPRM. Although the
Commission stated in the Second Report
and Order that separate fees for priority
access could be specified in the NSA,191
it did so based on a broader definition
of priority access than the one the
Commission proposes now. For
example, the Second Report and Order
permitted public safety preemption of
ongoing commercial traffic,192 which
the Commission would no longer allow.
The Commission also proposed more
specific criteria for defining
emergencies that would trigger priority
access rights and limitations on the
duration of priority access. The
Commission therefore seeks comment
on its view that separate fees for priority
access should not be allowed, or
whether a separate fee structure would
be appropriate to ensure that the D
Block licensee can recover its costs for
providing priority access.
90. The Commission also expects that
the Commission proposed approach will
significantly improve the chances that
this proceeding will succeed in
achieving the Commission’s goal of
making a nationwide, interoperable,
broadband network available to public
safety users. The Commission
appreciates that, to be viable, the
commercial services offered on the D
Block spectrum must be competitive
with other commercial mobile services.
Commercial viability could be adversely
impacted if users of a D Block licensee’s
commercial services perceive that their
commercial assets—a situation that rarely occurs,
and would not be a specific impact to the [National
Broadband Network] any more than any other
commercial asset.’’ APCO Comments at 27.
190 PSST Comments at 33. See ‘‘Declaration of
National Emergency by Reason of Certain Terrorist
Attacks,’’ https://www.whitehouse.gov/news/
releases/2001/09/20010914–4.html.
191 Second Report and Order, 22 FCC Rcd at
15448 ¶ 450.
192 Id. at 15442 ¶ 428.
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service may be preempted or
unavailable at the times when they most
need to use it, while competing
providers offer uninterrupted services.
In clarifying the circumstances that
would constitute an emergency,
requiring priority access rather than
preemption, and providing that only a
portion of the commercial capacity will
be subject to public safety priority
access even in emergencies, the
Commission seeks to minimize any
diminution of the commercial value of
the D Block spectrum. The Commission
tentatively finds that this approach
offers the best opportunity to create a
commercially viable network that can
satisfy the demands of public safety
users. The Commission seeks comment
on this approach.
91. Commercial Operations in the
Public Safety Spectrum on a Secondary
Basis. While the Commission proposes
to modify the rules governing public
safety’s emergency access to commercial
spectrum, the Commission tentatively
concludes that the Commission’s rules
for commercial access to public safety
spectrum should remain the same,
subject to the Commission’s clarification
regarding combined/blended use. As the
Commission explains below, the
spectrum access permitted here and the
conditions placed on the use of the
spectrum are designed to ensure that
any commercial use does not undermine
the ‘‘principal purpose’’ of the services
provided in this band ‘‘to protect the
safety of life, health, or property,’’ as
required by Section 337.193 And as the
Commission determined in the Second
Report and Order, commercial
operations on a secondary, preemptible
basis will maximize the efficient use of
the spectrum by permitting full use of
the public safety broadband
spectrum.194 Further, providing the D
Block licensee with the opportunity to
offer commercial services on this
spectrum, on a secondary basis, is an
integral part of a viable framework for
enabling the 700 MHz Public/Private
Partnership to finance the construction
of a nationwide, interoperable public
safety broadband network.
(iii) Consistency With Section 337 of the
Communications Act
92. Background. Section 337 of the
Communications Act, as amended,
required the Commission to allocate,
from the 746–806 MHz Band, 24
megahertz for public safety services and
36 megahertz for ‘‘commercial use to be
assigned by competitive bidding
193 47
U.S.C. 337(a)(1), (f)(1)(A).
Report and Order, 22 FCC Rcd at
15437–38, para. 416.
194 Second
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pursuant to section 309(j).’’ 195 Some
commenters suggest that rules that
would permit public safety use of
spectrum allocated for commercial use
or commercial use of public safety
spectrum on a secondary basis would
violate these requirements.196
93. Discussion. In the Second Report
and Order, the Commission analyzed
whether the 700 MHz Public/Private
Partnership rules regarding the use of
spectrum by the shared wireless
broadband network were consistent
with Section 337.197 The Commission
found that Section 337(a)(1), requiring
24 megahertz for ‘‘public safety
services,’’ does not prohibit us from
permitting commercial operations on a
secondary basis to the 10 megahertz of
the 700 MHz public safety spectrum to
facilitate the build-out of a public safety
network.198 The Commission further
found that Section 337(a)(2), which
directs us to allocate 36 megahertz ‘‘for
commercial use,’’ does not prohibit us
from requiring the D Block licensee to
provide public safety users with priority
access to D Block license spectrum in an
‘‘emergency.’’ 199 The Commission
continues to find the Commission’s
analysis of these issues in the Second
Report and Order, persuasive. Further,
because the Commission is not
proposing to modify the rules regarding
secondary commercial use of the public
safety spectrum, the Commission’s
reasoning and conclusions in the
Second Report and Order, regarding
such use apply to the Commission’s
secondary use proposal here as well.
While the Commission does propose to
modify public safety access to
commercial spectrum in emergencies,
such modifications would only reduce
or clarify the scope of the emergency
access. Because the Commission’s
conclusion in the Second Report and
Order, that such access was consistent
with Section 337 rested in part on a
finding that ‘‘emergency access to
commercial spectrum would be
triggered only in rare circumstances,’’
the Commission finds that the reasoning
and conclusion applies even more
strongly to the proposed emergency
access rules. Accordingly, consistent
with the Second Report and Order’s,
195 47
U.S.C. 337(a).
e.g., MetroPCS Comments at 14–16.
197 See Second Report and Order, 22 FCC Rcd at
15436–43 paras. 412–430.
198 See id. at 15437–41 paras. 413–25.
199 See id. at 15442 para. 429. The Commission
also found that imposing the 700 MHz Public/
Private Partnership condition on the D Block did
not prevent us from auctioning the license and was
therefore consistent with the mandate under
Section 337 that the spectrum be auctioned
pursuant to Section 309(j). See id. at 15442–43 para.
430.
196 See,
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reasoning and conclusions, the
Commission concludes that the
Commission’s proposals regarding
commercial use of public safety
spectrum on a secondary, preemptible
basis and public safety priority use of
commercial spectrum capacity are
consistent with the requirements of
Section 337.
94. The Commission finds that the
Commission’s proposal to permit the D
Block licensee to construct and operate
the shared wireless broadband network
using the entire 20 megahertz of D Block
spectrum and public safety spectrum as
a combined, blended resource is also
consistent with Section 337. The
Commission notes that Section 337(a)(1)
provides us the authority to allocate 24
megahertz for public safety services
‘‘according to the terms and conditions
established by the Commission.’’ 200 The
Commission has stated previously that
‘‘this phrase * * * afford[s] us broad
discretion to impose conditions on the
use of this spectrum to effectuate its
optimal use by public safety * * * .’’ 201
The Commission concludes that
permitting a blended use approach does
in fact serve this purpose, given the
Commission’s finding above that
blended use can provide a more
efficient and effective use of the
combined spectrum resource and thus
promote the Commission’s ultimate goal
of making available an interoperable
broadband network for public safety
users nationwide. Indeed, given the
Commission’s conclusion that a 700
MHz network providing for shared use
of commercial and public safety
spectrum is itself legally permissible,
the Commission finds it unlikely that
Congress intended to preclude an
efficient implementation of such
sharing. The Commission emphasizes
that, under a blended use approach,
public safety users will still be
guaranteed priority access to 10
megahertz of 700 MHz spectrum at all
times consistent with the capacity to
which they are entitled under the public
safety broadband license. The blended
use approach does not deprive either
commercial or public safety users of the
spectrum capacity that Congress
directed to be allocated for their use,
and is thus consistent with both the
purpose and text of the statute.
b. Technical Requirements of the Shared
Wireless Broadband Network
95. Background. In the Second Report
and Order, the Commission found that,
to ensure a successful public/private
200 47
U.S.C. 337(a)(1).
201 Second Report and Order, 22 FCC Rcd at
14339 para. 419.
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partnership between the D Block
licensee and the Public Safety
Broadband Licensee, with a shared
nationwide interoperable broadband
network infrastructure that meets the
needs of public safety, the Commission
must adopt certain technical network
requirements.202 Accordingly, among
other requirements, the Commission
mandated that the network incorporate
the following technical specifications:
• Specifications for a broadband
technology platform that provides
mobile voice, video, and data capability
that is seamlessly interoperable across
agencies, jurisdictions, and geographic
areas. The platform should also include
current and evolving state-of-the-art
technologies reasonably made available
in the commercial marketplace with
features beneficial to the public safety
community (e.g., increased bandwidth).
• Sufficient signal coverage to ensure
reliable operation throughout the
service area consistent with typical
public safety communications systems
(i.e., 99.7 percent or better reliability).
• Sufficient robustness to meet the
reliability and performance
requirements of public safety. To meet
this standard, network specifications
must include features such as hardening
of transmission facilities and antenna
towers to withstand harsh weather and
disaster conditions, and backup power
sufficient to maintain operations for an
extended period of time.
• Sufficient capacity to meet the
needs of public safety, particularly
during emergency and disaster
situations, so that public safety
applications are not degraded (i.e.,
increased blockage rates and/or
transmission times or reduced data
speeds) during periods of heavy usage.
In considering this requirement, the
Commission expects the network to
employ spectrum efficient techniques,
such as frequency reuse and sectorized
or adaptive antennas.
• Security and encryption consistent
with state-of-the-art technologies.203
96. The Commission required that the
parties determine more specifically
what these technical specifications
would be and implement them through
the NSA. In addition, the Commission
required that the parties determine and
implement other detailed specifications
of the network that the D Block licensee
would construct.204 The Commission
determined that allowing the parties to
specify details, including the
technologies that would be used, subject
202 Second Report and Order, 22 FCC Rcd at
15433 para. 405.
203 Id.
204 Id. at 15434 para. 406.
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57769
to approval by the Commission, would
provide the parties with flexibility to
evaluate the cost and performance of all
available solutions while ensuring that
the shared wireless broadband network
has all the capabilities and attributes
needed for a public safety broadband
network.205
97. In the Second FNPRM, the
Commission sought comment on
whether the Commission should clarify
or modify any aspect of the technical
network requirements adopted in the
Second Report and Order or otherwise
establish with more detail the technical
requirements of the network.206 To
guide the discussion and enable more
focused comment, the Commission
attached as an appendix a possible
technical framework (Technical
Appendix) that identified in greater
detail potential technical parameters for
the shared wireless broadband network.
The Commission sought detailed
comment on the Technical Appendix.
98. The Commission also sought
comment on whether any changes to
requirements were needed to reflect the
practical differences between the
architecture of traditional local wireless
public safety systems and the
architecture of nationwide commercial
broadband network systems.207
Conversely, the Commission sought
comment on whether to require national
standardization in the implementation
of the network requirements, and the
extent to which national standardization
would help the network to achieve
efficiency and economies of scale and
scope.208
99. Further, the Commission sought
comments on other specifications the
Commission required of the network,
including:
• A mechanism to automatically
prioritize public safety communications
over commercial uses on a real-time
basis and to assign the highest priority
to communications involving safety of
life and property and homeland security
consistent with the requirements
adopted in the Second Report and
Order;
• Operational capabilities consistent
with features and requirements
specified by the Public Safety
Broadband Licensee that are typical of
current and evolving state-of-the-art
public safety systems (such as
connection to the PSTN, push-to-talk,
one-to-one and one-to-many
communications, etc.);
205 Id.
at 15426 para. 383.
FNPRM, 23 FCC Rcd at 8071 para. 61.
207 Second FNPRM, 23 FCC Rcd at 8072 para. 64.
208 Second FNPRM, 23 FCC Rcd at 8072 para. 64.
206 Second
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• Operational control of the network
by the Public Safety Broadband
Licensee to the extent necessary to
ensure public safety requirements are
met; and
• A requirement to make available at
least one handset that would be suitable
for public safety use and include an
integrated satellite solution, rendering
the handset capable of operating both on
the 700 MHz public safety spectrum and
on satellite frequencies.209
100. The Commission sought
comment on whether the Commission
should itself establish, in a detailed and
comprehensive fashion, the technical
obligations of the D Block licensee with
regard to the network, and if so, what
specifications it should adopt. The
Commission sought comment on
whether the technical framework set
forth in the Technical Appendix could,
following comment on its specific
components, help establish an
appropriate set of requirements for the
shared wireless broadband network.210
The Commission also sought comment
on a number of particular technical
issues.211
101. The majority of commenters
argue that the Commission should
provide more specificity regarding
technical network requirements. APCO,
for example, recommends that ‘‘all steps
be taken to either pre-define or
eliminate as many negotiating points of
the NSA as possible.’’ 212 AT&T states
that the Commission must ‘‘clarify the
key requirements for the public safety
network and the rights and
responsibilities for all parties to the
Public/Private Partnership * * *’’and
that making such clarifications will
‘‘inform commercial entities about
potential risks, benefits, and required
amounts of financial investment, which
will enable commercial entities to
evaluate the commercial viability of the
Public/Private Partnership.’’ 213 The
PSST agrees that ‘‘a substantially more
detailed list of technical specifications
should be developed in advance of the
D Block re-auction.’’ 214 It states that, on
balance, ‘‘the benefit of greater certainty
for prospective bidders outweighs the
natural inclination of parties to
maintain maximum flexibility during a
negotiation process, particularly one of
such complexity and economic
significance.’’ 215 The PSST provides
209 Second Report and Order,, 22 FCC Rcd. at
15433–34 para. 405.
210 Second FNPRM, 23 FCC Rcd at 8074 para. 70.
211 Second FNPRM, 23 FCC Rcd at 8074–79 paras.
71–83.
212 APCO Comments at 26.
213 AT&T Comments at 9.
214 PSST Comments at 29.
215 PSST Comments at 29.
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proposed rules that include detailed
technical requirements for the shared
wireless broadband network.216
102. Discussion. The Commission
notes that several technical issues, such
as network coverage, prioritization of
services, and operational control of the
network are addressed elsewhere in this
notice. In this section, the Commission
specifically addresses requirements
pertaining to: the broadband technology
platform; interoperability; availability,
robustness and hardening of the
network; capacity, throughput and
quality of service; security and
encryption; power limits/power flux
density limits/related notification and
coordination requirements; and the
satellite-capable handset requirement.
103. Based on the record developed in
this proceeding, the Commission
tentatively concludes that the
Commission should establish more
detailed technical requirements for the
shared wireless broadband network. The
Commission tentatively concludes that
this approach will provide additional
certainty regarding the obligations of the
D Block licensee(s) and the costs of the
shared wireless broadband network. The
Commission anticipates that specifying
the technical requirements as
completely as possible at this time, and
reducing the issues that will be left to
post auction negotiation, will provide
greater assurance to potential bidders
regarding the commercial viability of
the shared wireless broadband network
while ensuring that the network meets
public safety’s needs.217 Thus, the
Commission tentatively concludes that
the detailed technical requirements the
Commission proposes to adopt as
described herein would best serve the
Commission’s goal of making a
broadband, interoperable network
available on a nationwide basis to
public safety entities. The Commission
seeks comment on these tentative
conclusions.
104. As noted earlier, a number of
commercial interests assert that the
costs associated with deploying a shared
network designed to public safety
specifications would exceed those of
typical commercial networks and would
directly impact the commercial viability
of the network.218 They maintain that
simply building another commercial
grade network will be inadequate to
meet public safety needs, and that it is
216 Addendum
to PSST Comments.
Commission has appended an NSA term
sheet, which provides a summary of major terms
that the parties must include in their agreement(s).
See, supra, Appendix D.
218 AT&T Comments at 2; MetroPCS Comments at
5; Motorola Comments at 7–9; Sprint Nextel
Comments at 13; VerizonWireless Comments at 3.
217 The
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imperative that the wireless broadband
network be designed to meet the
performance requirements of public
safety and to provide the necessary
features and applications so that public
safety can effectively discharge their
duties. Many of the commenters from
the public safety community argue that
public safety’s requirements must not be
diminished in order to make the shared
wireless broadband network
commercially viable. Motorola suggests
that it is not possible to balance the
interests of public safety and
commercial service providers and that
additional funding from the Federal
government is required to make the
combined network successful.219 APCO
supports the development of a national,
interoperable, broadband network that
is designed, maintained, and operated to
meet the requirements of public safety,
but recognizes that some compromises
regarding public safety requirements
may be necessary to attract a private
sector partner through the D Block
auction.220 In developing the
Commission proposed technical rules,
the Commission has attempted to
balance public safety’s requirements
with the capabilities that may be
commercially viable based on the record
in this proceeding. The proposed
technical requirements take into
account the detailed technical
requirements proposed by the PSST and
comments filed in response to the
Second FNPRM and Technical
Appendix.
105. Broadband Technology Platform.
Many commenters argue that the
Commission should adopt guidelines
specifying that the joint network must
be built with state-of-the-art,
commercially available, standards-based
technology.221 For example, AT&T
argues that the baseline guidelines
should be sufficiently flexible to permit
the use of existing commercial
technology, where such components
meet public safety’s capability
requirements.222 The Commission
agrees with commenters that
maximizing the use of commercially
available technology can substantially
increase the speed and decrease the cost
of deployment of the network.223 In
219 Motorola
Comments at 7.
Comments at 6.
221 See PSST Comments, Attachment C at 2;
AT&T Reply Comments at 18 (citing Ericsson
Comments at 9–15; Interisle Comments at 11;
Motorola Comments at 7; NATOA Comments at 9
and Technical Report Attachment; Northrop
Grumman Comments at 6–7; Qualcomm Comments
at 8–10; Verizon Wireless Comments at 16–18;
Wireless RERC Comments at 7–8).
222 AT&T Reply Comments at 18.
223 AT&T Reply Comments at 18; AT&T
Comments at 10; Ericsson Comments at 14–15;
220 APCO
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addition, it is also likely to significantly
reduce the costs of end user devices for
first responders. Moreover, by
permitting the leveraging of existing
commercial network infrastructure, the
shared wireless broadband network will
be able to be built out more efficiently,
thus making participation in the
Partnership more attractive to
commercial entities.224 Thus, based on
these considerations, the Commission
tentatively concludes that the network
should utilize standardized commercial
technologies. The Commission further
proposes that the broadband platform
must be IP-based and should also
include current and evolving state-ofthe-art technologies reasonably made
available in the commercial marketplace
with features beneficial to the public
safety community.
106. The Commission tentatively
concludes that the shared wireless
broadband network must provide for
fixed and mobile voice, video, and data
capability. Some parties indicate that
certain applications, such as fixed video
surveillance and fixed point-to-point
and point-to-multipoint services, could
use substantial capacity in the network
and should use other spectrum. AlcatelLucent notes, for example, that ‘‘because
video is likely the public safety
application with the highest data rate
requirements, care must be taken to
ensure that support of video across the
service area provide public safety with
mission-critical operational capabilities
without compromising the economic
viability of the public/private
partnership.’’ 225 Stagg Newman argues
that applications such as streaming
video could consume much of the
capacity of a network and would have
a dramatic effect on the cost of the
network.226 Other commenters, such as
Tyco Electronics, argue that the
Commission should ‘‘afford public
safety agencies maximum flexibility in
the use of D Block Spectrum.’’ 227 The
Commission appreciates the concern
that certain applications could have a
Verizon Wireless Comments at 16–18; AT&T Reply
Comments at 18.
224 AT&T Reply Comments at 18–19.
225 ALU Comments at 6.
226 See, e.g., Testimony of Stagg Newman, Public
Hearing on Public Safety Interoperable
Communications—The 700 MHz Band Proceeding,
Federal Communications Commission, July 30,
2008, at 2, https://www.fcc.gov/realaudio/
presentations/2008/073008/newman.pdf.
(estimating that increase in cell edge speed from
300 kbps/75 kbps downlink/uplink to 1.2 Mbps/512
kbps downlink/uplink, combined with a
requirement of inbuilding coverage, would require
2 to 4 times the number of cellsites, at a
construction cost of $200,000 to $500,000 and
annual operating cost of $50,000 to $100,000 for
each cellsite).
227 Tyco Comments at 7.
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significant impact on network design
and costs. However, the Commission
finds that any effort to prohibit certain
types of applications would be
counterproductive to encouraging
development and use of the shared
wireless broadband network. The
Commission notes that emerging
networks and technologies are capable
of accommodating a wide variety of
services. The Commission expects that
the operators and users of the shared
wireless broadband network will make
reasonable judgments as to the
applications that will run on the
network and will adapt the network to
meet evolving requirements. The
Commission invites comment on this
tentative conclusion.
107. The Commission notes that a
variety of commenters—including
public safety and commercial entities—
assert that the D Block licensee should
take the lead role in choosing the
underlying technology of the network,
in cooperation with the Public Safety
Broadband Licensee and according to
minimum specifications set by the
Commission.228 The Commission
disagrees with commenters who argue
that the Commission should make a
specific choice of technology. In view of
these commenters’ differing opinions
regarding the most appropriate
technology,229 there does not appear to
be a basis for a determination regarding
the viability of any particular
technology for shared network at this
time. Thus, the Commission tentatively
concludes that the public interest would
be better served by allowing certain
flexibility to parties interested in the D
Block to make a determination regarding
the technology for the network.
108. The Commission tentatively
concludes, however, that the shared
wireless broadband network must use a
common air interface to ensure
nationwide interoperability as discussed
elsewhere in this notice. The
Commission proposes that the air
interface be selected in a manner that
provides interested parties as much
flexibility and control as possible in the
choice, and with the ability to bid on a
license with the confidence regarding
what technology will be applicable. The
Commission notes that the record
supports a conclusion that two next
228 AT&T Reply Comments at 18 (citing Leap
Wireless Comments at 12–13; NPSTC Comments at
39; NTCH Comments at 7; RPC Comments at 13–
14; Comments of Wirefree Partners III, LLC at 14–
15).
229 See Comcentric Comments at 5; Qualcomm
Comments at 8; MSV Comments at 21; MSUA
Comments at 22; Space Data Corp. Comments at 8–
9; SDR Comments at 23–24; Ericsson Comments at
10, 13–14.
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57771
generation technologies in particular,
WiMAX and LTE, provide the most
likely options to provide the necessary
broadband level of wireless service to
public safety entities.230 In light of these
goals and observations, the Commission
proposes to adopt two approaches with
regard to determining the common
broadband technology, tailored to
whether the Commission assigns a
nationwide licensee or regional
licensees. In the event of a nationwide
licensee, because there is no concern
that different entities will seek to adopt
different broadband radio access
network technologies, the Commission
proposes to allow the D Block license
winner complete authority and
discretion to choose its broadband
technology after winning the license. In
the event of regional licensees, however,
the Commission finds that permitting
them to choose their own technology
would run an unacceptable risk of the
licensees choosing different
technologies, or being otherwise unable
to agree on a technology. Further, the
Commission recognizes that it would be
problematic for the Commission itself to
establish a common technology postauction, as parties will likely consider
the broadband technology a critical
element of their business plans and an
important factor in determining whether
to bid for a license. Accordingly, to
enable the selection of a single
broadband technology standard that will
apply to all regional licensees, the
Commission proposes to use the
auctions process itself. More
specifically, the Commission tentatively
concludes that the Commission will
offer three alternative sets of licenses:
regional licenses conditioned on the use
of WiMAX technology and regional
licenses conditioned on the use of LTE
technology, as well as the third set of a
single nationwide license. The bidder(s)
for the set covering the greatest
aggregate population at the close of
bidding (with ties between sets broken
by which of the tied sets received the
highest gross bids in the aggregate) will
become the provisionally winning
bidder(s) and determine whether the
Commission will grant the nationwide
license, the WiMAX PSR licenses, or the
LTE PSR licenses, subject to postbidding application of a minimum sale
requirement and all other conditions of
the licensing process established by
Commission rules, including those
specific to the D Block. The Commission
230 See, e.g., InterIsle Comments at 2 (‘‘there is
much to be gained by leveraging CMRS technology
on behalf of Public Safety users. Technologies such
as WiMAX and especially LTE are very promising
* * * .’’).
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discusses this process in greater detail
elsewhere in this Third FNPRM. The
Commission seeks comment on the
Commission’s proposed determinations
regarding the radio access technology
platform for the shared network.
109. The Commission is cognizant
that wireless broadband networks have
already been deployed in the 700 MHz
public safety spectrum in certain areas.
The Commission does not wish to
disrupt existing operations that
represent substantial investments and
are working well to serve local public
needs. The Commission invites
comment as to what steps, if any,
should be taken with regard to such
systems that may ultimately not be
compatible with the nationwide shared
wireless broadband network technology.
For example, should the Commission
require use or availability of multi-band
radios that could be available to public
safety first responders that may need to
come into these areas in times of
emergency? If so, how could this be
implemented and in what timeframe?
110. Interoperability. The
Commission tentatively concludes that
that the network must provide voice,
video, and data capabilities that are
interoperable across agencies,
jurisdictions, and geographic areas. By
interoperable, the Commission means
that the technology, equipment,
applications, and frequencies employed
will allow all participating public safety
entities, whether on the same network
or on different regional 700 MHz public
safety broadband networks, to
communicate with one another
regardless of whether they are
communicating from their home
networks or have roamed on to another
regional network. To achieve this level
of interoperability, the Commission
tentatively concludes that, as discussed
in detail above, the shared wireless
broadband network must use a common
air interface.231 The Commission takes
note that certain parties assert that a
nationwide common air interface is not
necessary because most interoperability
is conducted locally. However, in times
of a crisis public safety agencies often
provide assistance far beyond their
typical areas of operation. The
Commission recognizes that one
solution is for the local public safety
agencies to supply compatible
equipment to public safety agencies that
are coming from another area to provide
assistance. Such an approach has
significant drawbacks because it
231 See, e.g., NYPD Comments at 10 (‘‘Regional
interoperability can be achieved by adapting a
common air interface and operating on a common
frequency band.’’).
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requires a significant supply of extra
equipment at additional expense. The
Commission also notes arguments that
multiple air interfaces could be
accommodated through the use of
handsets that can operate over multiple
broadband air-interfaces or through use
of software defined radios, particularly
at base stations. The Commission is
concerned, however, that such
equipment comes at additional expense
that would be borne by all public safety
users. It is also not clear from the record
when handsets able to work over all the
broadband platforms chosen by the
various licensees would be available.
Further, if these multi-mode handsets
were produced solely to serve the public
safety broadband networks, the Public
Safety Broadband Licensee would have
less opportunity to equip first
responders with off-the-shelf handsets
that could be obtained at significantly
less cost than customized public safety
user devices. The Commission solicits
comment on the Commission’s tentative
conclusion that selection of a single air
interface is necessary to ensure
nationwide interoperability.
111. As discussed elsewhere, to
achieve interoperability with respect to
the geographic area option of PSRs, the
Commission tentatively concludes that
the Commission will offer at auction
alternative sets of PSRs, each
conditioned on the licensees’ use of a
particular technology platform. The
Commission further tentatively
concludes that, in the event that there
are multiple D Block licensees, each
regional D Block license winner should
be required to enter into arrangements
both with the other D Block license
winners and with the Public Safety
Broadband Licensee as necessary to
ensure interoperability between
networks. The Commission proposes
that such arrangements provide, at a
minimum, that each D Block licensee
will provide the ability to roam on its
network to public safety users of all
other 700 MHz public safety broadband
networks.232 The Commission further
proposes that the NSA of each regional
D Block licensee must specify that the
licensee will provide public safety users
of all other 700 MHz public safety
regional networks with the ability to
roam on its network, and should specify
the relevant terms and conditions under
which roaming is provided. However, to
ensure that the broadband network
supports public safety interoperability,
the Commission proposes that D Block
licensees should not be permitted to
232 The Commission does not, however, propose
to require that such roaming arrangements extend
to commercial services.
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assess special roaming charges (over and
above service fees charged for in-region
use) in cases where public safety users
require roaming for mutual aid or
emergencies.
112. A number of commenters suggest
that further clarity is needed with regard
to the role of the shared wireless
broadband network relative to
interoperability with existing public
safety networks. For example, some
parties question whether the shared
network was to be used for ensuring
interoperability with existing legacy
public safety voice systems or just for
users of this spectrum. APCO notes that,
while the shared network will have
capabilities for voice, data and video
systems, existing public safety systems
will be used well into the future.233 The
Commission observes that considerable
work has been done and is under way
to ensure interoperability among
existing public safety communications
systems.
113. The Commission expects that the
shared wireless broadband network will
ensure interoperability in a variety of
ways. All public safety users that opt to
use the shared wireless broadband
network will have the capability to be
interoperable because they will be using
a common air interface. As a result,
radios could be taken from one
jurisdiction to another, such as occurs
for disaster relief, and will have the
ability to communicate with other
public safety users in that area.
Moreover, multi-band radios could be
developed, although at some cost
premium, that are capable of operating
on both the shared wireless broadband
network and other public safety
frequency bands.
114. The shared wireless broadband
network could also be integrated with
other public safety communications
systems via gateways and bridges, as
already occurs for existing public safety
systems operating across multiple
frequency bands. In this regard, the
Commission believes it is important that
the Commission ensures that the shared
wireless broadband network have the
technical capability to support
interconnection with public safety
operations in public safety frequency
bands other than the 700 MHz public
safety spectrum broadband
allocation.234 Specifically, the
Commission means to provide public
safety with the opportunity to
interconnect existing voice-based public
safety communications systems
operating in VHF, UHF, and
233 APCO
Comments at 10.
Commission intends to include voice
service presently conducted on VHF, UHF.
234 The
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narrowband 700 MHz and 800 MHz
bands with the shared network(s). The
Commission therefore proposes to
require the D Block licensee(s) to
publish IP-based specifications enabling
public safety operations in other
frequency bands to access the shared
broadband network(s) via bridges and/or
gateways. The Commission further
tentatively concludes to require the
Upper 700 MHz D Block licensee to
offer gateway-based access to the shared
network(s) for a standard charge per
user (meaning per public safety officer/
individual), and propose that a fee of
$7.50 per month may serve as an
appropriate amount.235 As seen in Table
1, the Commission bases this proposed
fee on the Commission’s survey of
monthly rates for services
approximating land mobile radio—
including ‘‘walkie-talkie’’ and push-totalk service—that are add-ons to basic
monthly service plans and offered under
standard government contracts to public
safety users. The Commission also
proposes that public safety users
themselves bear the costs of the bridges
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and gateways, including installation and
maintenance costs, because such
equipment would essentially serve as an
extension of existing public safety
systems. Parties who suggest that the
costs of gateways or bridges should be
shared between the D Block licensee
and the Public Safety Broadband
Licensee should provide specific
information as to the costs involved,
rationale for sharing these costs, and
formula for sharing the costs. The
Commission invites comment on these
proposals.
TABLE 1—SURVEY: SERVICE RATES FOR WALKIE TALKIE/PUSH-TO-TALK SERVICE
Monthly
service rate
Contracting entity/authority
Wireless operator
Service plan
State of Florida .........................
State of New York ....................
Verizon Wireless ......................
Verizon Wireless ......................
Sprint Nextel ............................
Basic Push to Talk (Florida Plan) ..............................................
America’s Choice for Business Plan—Push to Talk Option ......
Unlimited Nextel Group Walkie-Talkie .......................................
$10.00 236
8.10 237
7.50 238
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115.The Commission recognizes that
interoperability may not be fully
achievable without attention to the use
of compatible applications. As
discussed elsewhere, the Public Safety
Broadband Licensee is responsible for
approving public safety applications
and end user devices. Accordingly, the
Commission proposes to clarify that in
exercising this responsibility, the Public
Safety Broadband Licensee must ensure
that any applications and end users
devices it approves must be consistent
with the interoperability requirements
contained in the Commission’s rules
and in accordance with the NSA. The
Commission invites comment as to the
merits of this approach and any other
methods to achieve interoperability
among user applications. In particular,
to promote interoperability, including
interoperability with legacy voice
systems, the Commission proposes to
require the Shared Wireless Broadband
Network to support a Voice over
Internet Protocol (VoIP) capability to
complement existing public safety
mission critical voice communication
systems.
116. If there are multiple regional D
Block licensees, it may be necessary to
establish a mechanism to enable public
safety to coordinate with and establish
common approaches among these
licensees with regard to interconnection
standards, compatibility with common
applications, authentication, etc. The
Commission invites comment on
whether the Commission needs to take
any specific actions in this regard or it
can be left to the various licensees.
117. Availability, Robustness and
Hardening. Several commenters offer
specific proposals regarding the
robustness and hardening requirements
for the network.239 After reviewing the
record, the Commission has made a
number of changes to the proposals in
the Technical Appendix that are
reflected in the proposed rules. The
Commission proposes to require 99.6
percent network availability for all
terrestrial elements of operation, as
suggested by U.S. Cellular. The D Block
licensee(s) shall use commercially
reasonable efforts to provide network
availability above this requirement, with
the target of 99.9 percent network
availability. The methods of
measurement are to be defined in the
Network Sharing Agreement. Sites
designated as ‘‘critical’’ will be required
to have battery backup power of 8
hours, and shall have generators with a
fuel supply sufficient to operate the
generators for at least 48 hours. The D
Block licensee(s) will make reasonable
efforts to provide a fuel supply at
‘‘critical’’ sites above this requirement
sufficient for a minimum of 5 days. The
designation of a site as ‘‘critical’’ shall
be a joint decision by the D Block
licensee(s) and the Public Safety
Broadband Licensee, in consultation
with the relevant community. The
designation of sites as ‘‘critical’’ shall
not be required to cover more than 35
percent of the shared wireless
broadband network sites for the D Block
license(s); however, the D Block
licensee(s) shall use commercially
reasonable efforts to designate as
‘‘critical’’ additional sites requested by
the Public Safety Broadband Licensee,
up to 50 percent of all the licensee’s
sites. The Commission requests
comments on these proposals.
118. The Commission also finds
considerable support in the record for
permitting reliance on non-terrestrial
options to ensure reliability. The PSST,
for example, suggests that reliability,
availability, and hardening expectations
could be ‘‘achieved through a variety of
means [including] backup reliance on
satellite coverage.’’ 240 SIA, MSV,
Inmarsat, and MSUA all encourage the
use of satellite services as part of the
nationwide network. Several other
commenters also support the use of
satellite or similar services to
complement the overall network.241
235 Any gateway-based access service necessarily
assumes a public safety network in place providing
radio coverage on the desired frequencies in the
area of operation.
236 State of Florida, Department of Management
Services, Wireless Voice Services, State Term
Contract #725–330–05–1, Amendment 4, available
at https://dms.myflorida.com/business_operations/
state_contracts_agreements_and_price_lists/state_
term_contracts/wireless_voice_services/
contractors_verizon_wireless (last viewed on Sept.
11, 2008). The pla includes unlimited one to one
and group Push to Talk calling.
237 State of New York, Office of General Services,
Verizon Wireless Contract Number PS61217
(effective August 15, 2007), available at https://
www.ogs.state.ny.us/purchase/prices/
7700802459prices1207.pdf (last viewed on Sept 11,
2008). This rate is available as an add on option for
subscribers of the basic voice plan offered by
Verizon for $32.99 per month.
238 Id. This price reflects a 25 percent discount off
the standard retail rate of $10.00 per month. The
Commission notes that Sprint Nextel also offers a
‘‘Basic 200 plan’’ for $5 per month.
239 See, e.g., Televate Comments at 10, PSST
Comments Appendix C at 3, Peha Comments at 13.
240 PSST Comments, Attach. C at 3. See also PSST
Comments at 34 n.72.
241 See Washington Comments at 1; Mississippi
Comments at 1; Comcentric Comments at 4;
Continued
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MSV in particular proposes that the
Commission ‘‘offer the D Block licensee
the option of providing satellite service
in return for greater flexibility in
meeting certain license
requirements.’’ 242 These commenters
argue that non-terrestrial services can
provide critical redundancy to a
terrestrial system, increasing the
reliability and robustness of the
network.243 MSV states, for example,
that ‘‘disasters that impair or destroy
terrestrial wireless networks either
directly or by disabling the power grid
are extremely unlikely to have any
adverse impact on satellite
networks.’’ 244
119. The Commission agrees with
commenters that non-terrestrial
capabilities can serve the interests of
public safety by increasing the
survivability of the system. Although
the Commission does not expect that
non-terrestrial service can fully
substitute for terrestrial network
services, the Commission finds that
imposing hardening, and robustness
requirements on all sites of the network
would jeopardize the economic viability
of the network. Accordingly, the
Commission proposes to permit the D
Block licensee(s) and the Public Safety
Licensee to agree on other methods to
improve network resiliency in lieu of
designating critical cell sites. These
might include deployment of mobile
assets or the use of satellite facilities.
Parties are invited to comment on this
proposal. The Commission also seeks
comment on whether additional satellite
capability would further enhance the
nationwide shared wireless broadband
network and whether it would serve the
public interest to provide additional
flexibility to a D Block licensee in
meeting its licensing obligations if it
integrates a satellite component or other
non-terrestrial technology with the
shared wireless broadband network.
120. Capacity, Throughput, and
Quality of Service. A number of parties
note that an analysis of the economic
viability of the shared wireless
broadband network cannot be made
without addressing certain key technical
parameters such as edge of cell data
rates and data rates for indoor
Wirefree Comments at 15. Space Data advocated
using their ‘‘near space,’’ ‘‘balloon-borne’’ network
of transceivers that can reach 99.3% of the
population less expensively than construction a
terrestrial network with similar reach. Space Data
Comments at 1–3, 7. The SDR Forum notes that
cognitive radios could be used as ‘‘an enabling
technology’’ to help integrate satellite and terrestrial
services. SDR Forum at 20–21, 23.
242 MSV Comments at i–ii.
243 See, e.g. MSV Comments at 21.
244 MSV Comments at 9–10.
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coverage.245 The Commission proposed
rules address these and other points
raised by commenters.
121. The Commission proposes that
the shared wireless broadband network
typically provide data speeds of at least
1 Mbps in the downlink direction and
600 Kbps in the uplink direction.
Irrespective of this requirement, the D
Block licensee(s) must provide public
safety users with data speeds that are at
least as fast as the best data speeds
provided to commercial users of the
shared wireless broadband network. The
Commission also proposes that, at the
edge of coverage, the shared wireless
broadband network shall provide for
data rates of a minimum of 256 kbps
directions in urban environments, 128
kbps for suburban and rural areas, and
64 kbps on highways, all under 70
percent loading conditions, in both the
downlink and uplink directions as
recommended by U.S. Cellular. The
Commission recognizes that these data
speeds may appear to be relatively slow,
but note that they generally ensure that
basic service is available even at the
edge of coverage under relatively high
traffic conditions. For purposes of this
rule, the Commission proposes that
dense urban will encompass areas
where the population per square mile is
15,000 people or greater; urban 2,500–
14,999, suburban 200–2499, and rural
0–199, as suggested by the PSST.246 The
Commission also proposes these data
speeds serve only as design objectives.
It would not be practical or appropriate
to apply these data rates as the
minimum for any given device at any
245 See ALU Comments at 5 recommending: (1) A
minimum cell edge data rate of 256 Kbps on the
forward link (base to mobile), and 128 Kbps on the
reverse link (mobile to base); (2) a link budget
supporting 95% (area) coverage reliability
corresponding to 90% (edge contour reliability; and
(3) a median throughput per transceiver of 1 Mbps
downstream and 600 Kbps upstream over 50% of
the service area) See also, Stagg Newman
Comments, attached White Paper ‘‘750 MHz RF
Coverage Design for the State of North Carolina’’,
pp 19–20, proposing 1.0–2.0 Mbps forward link and
450–750 kbps return link (avg.) over 90% of the
coverage area and 300 kbps forward link and 50
kbps reverse link at the cell edge covering 85% of
the population of North Carolina; See also Public
Safety Spectrum Trust Comments, attachment C
‘‘Shared Wireless Broadband Network Technical
Analysis’’ Table 1–A proposing 1000 kbps forward
link and 256 kbps reverse link for dense urban and
urban morphologies, 512 kbps forward link and 128
kbps reverse link for suburban and rural
morphologies, and 128 kbps forward link and 64
kbps reverse link for highways; See also, U.S.
Cellular ex parte of August 29, 2008, proposing to
revise these values to 256 kbps in both directions
in urban environments, 128 kbps in both directions
for suburban and rural areas, and 64 kbps in both
directions on highways, under conditions of 70%
loading.
246 Public Safety Spectrum Trust Comments,
Attachment C ‘‘Shared Wireless Broadband
Network Technical Analysis’’ Table 1–B.
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particular time or location. The
Commission appreciates the need to
address planning factors for indoor
coverage. The Commission is proposing
propagation factors in the rules that are
to be taken into account in designing the
shared wireless broadband network
relative to indoor coverage for VoIP
service. The Commission finds that it is
appropriate to focus only on VoIP
because these types of communications
occur in real time. Nonetheless, the
Commission find that designing the
system for indoor VoIP coverage may
well serve to ensure the availability of
data service in buildings as well. The
Commission also proposes to address
service to vehicles moving at speeds of
up to 100 mph by planning for coverage
based on a 1.5 Watt EIRP mobile vehicle
mounted radios.247 The Commission
invites comment on these specific
proposals
122. The Commission is not
proposing any specific requirements
relative to overall capacity of the shared
wireless broadband network.248 The
overall capacity of a network is very
difficult to define because it can depend
on many variables such as the level of
use at particular locations, how use
varies over time, the types of
applications that are used, etc.
Moreover, it is not feasible to establish
rules that would address the various
capacity requirements throughout the
nation. For example, the capacity
required in a dense urban area where
public safety has implemented a wide
variety of broadband applications would
be much greater than in a rural area
where only minimal broadband
applications might be used. The
Commission also notes that none of the
commenters specifically addressed
overall capacity of the wireless
broadband network other than in the
context of specifications for data speeds
or to suggest that capacity should be
negotiated under the Network Sharing
Agreement The Commission agree that
the capacity of the shared wireless
broadband network would be best
addressed through negotiation under the
Network Sharing Agreement. The
Commission does not anticipate that
this will create any significant
uncertainty for prospective D Block
licensee(s) because the Commission
247 See Stagg Newman Comments, attached White
Paper ‘‘750 MHz RF Coverage Design for the State
of North Carolina’’, pp 19–20, proposing an
assumed 1.5 Watt EIRP vehicle mounted radio for
public safety vehicles.
248 Elsewhere in this Third FNPRM, however, the
Commission requires the D Block licensee(s) to
ensure public safety users’ access to 10 megahertz
of spectrum at all times and 12 to 14 megahertz of
spectrum in the case of emergencies. See supra
discussion of Spectrum Use Issues.
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expects the capacity requirements will
generally follow the patterns of
commercial networks. The Commission
solicits comment on this analysis. The
Commission is also proposing to require
that the Network Sharing Agreement
include a process for demand
forecasting and that the D Block
licensee(s) deliver to the Public Safety
Broadband Licensee monthly capacity
utilization reports as discussed below.
123. The Commission also proposes a
number of requirements to ensure
quality of service for public safety. The
Commission notes that the Department
of Homeland Security is working on
developing wireless priority service for
public safety communications. While
the Commission encourages the further
development and implementation of
wireless priority service for public
safety, the Commission will not require
implementation before appropriate
standards are developed and
appropriate hardware and software is
available. As discussed elsewhere, the
Commission proposes to require the
Public Safety Broadband Licensee to
establish access priority and service
levels, and authenticate and authorize
public safety users. The Public Safety
Broadband Licensee may accomplish
this under the Network Sharing
Agreement by establishing its own
system that would accomplish these
functions or defining parameters that
are compatible with commercial
technology and can be easily
implemented by the D Block licensee(s).
This function must be capable of rapid
updates to meet public safety’s needs.
The Commission asks for commenters’
views on these proposals.
124. The Commission notes that U.S.
Cellular proposed a number of
amendments to the PSST’s proposed
technical requirements whereby the
Public Safety Broadband Licensee
would establish a system that would be
integrated with the shared wireless
broadband network to provide a
nationwide set of public safety
applications, automatically authenticate
public safety users, and assign the
required priority or quality of service to
public safety communications.249 The
implication of this proposal is that it
would serve to ensure overall quality of
service. It is not clear precisely how this
proposal might be implemented. The
Commission invites comment on U.S.
Cellular’s proposal and whether it is
viable for both public safety and the
prospective D Block licensee(s). The
Commission also invites comment on
249 U.S. Cellular ex parte of August 29, 2008,
proposing various amendments to the PSST
proposed technical requirements.
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potential costs of this approach and how
it might be funded.
125. Security and Encryption. The
Commission tentatively concludes that
the Commission should require the
shared broadband network to maintain
security and encryption features
consistent with commercial best
practices and with capabilities
described in the Technical Appendix
and the Second Report and Order.250
The Commission recognizes that a
number of commenters propose more
specific requirements. The Wireless
Rehabilitation Engineering Research
Center for Wireless Technologies, for
example, recommends the use of open
access networks with built-in default
encryption, to reduce potential security
risks.251 Cook Consulting recommends
using ‘‘whitelisting’’ protocol or
encryption to protect the network.252
Region 33 states that the network should
have the same stringent security and
encryption requirements as existing and
future state and Federal databases.253
The PSST and NPSTC propose a set of
detailed security requirements.254 Other
parties, however, argue that the
Commission should maintain a more
flexible approach. Leap Wireless states
there should be no security
requirements beyond what’s required
for nationwide commercial CMRS
networks.255 Ericsson suggests that
security measures beyond those already
provided by commercial networks
should be negotiated between the D
Block licensee and the PSBL and
detailed in the NSA.256 Sprint Nextel
states that network security and
encryption should be ‘‘consistent with
state-of the-art technologies.’’ 257 In view
of the divergence of opinions regarding
the need for more specific security and
encryption requirements, and on the
appropriate requirements to adopt, the
Commission tentatively concludes that
the public interest would be better
served by maintaining flexibility similar
to what the Commission adopted in the
Second Report and Order. Specifically
the Commission proposes to require the
D Block licensee(s) to provide security
and encryption consistent with
commercial best practices. Further, the
Commission proposes to require that the
250 See Second FNPRM, 23 FCC Rcd at 8131;
Second Report and Order, 22 FCC Rcd at 15434
para. 405.
251 Wireless RERC Comments at 15.
252 Peter G. Cook Consultancy, Inc., Comments at
7.
253 Region 33 Comments at 10.
254 PSST Comments Attachment C, at 8; NPSTC
Comments at 55.
255 Leap Wireless Comments at 12.
256 Ericsson Comments at 22–23.
257 Comments of Sprint Nextel Corporation at 11.
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D Block licensee(s) shall: (1) Comply
with U.S. Federal government
standards, guidelines and models that
are commercial best practices for
wireless broadband networks; (2)
implement controls to ensure that
public safety priority and secure
network access are limited to authorized
public safety users and devices, and
utilize an open standard protocol for
authentication; and (3) allow for public
safety network authentication,
authorization, automatic logoff,
transmission secrecy and integrity, audit
control capabilities, and other unique
attributes.
126. Power Limits/Power Flux Density
Limits/Related Notification and
Coordination Requirements. In the
Second FNPRM, the Commission
addressed the discrepancy between the
text of the Second Report and Order,
and the applicable rules of the Second
Report and Order. The text indicated
that the Commission would not adopt
any power flux density (PFD) limit
requirement in the public safety
broadband segment, based on the
limited record received on this issue.258
However, the applicable rules require
the Public Safety Broadband Licensee to
meet a PFD limit when operating base
stations at power levels above 1 kW
ERP.259 In light of this discrepancy, the
Commission sought comment on
whether to retain this PFD requirement
for the public safety broadband
spectrum.260 The Commission also
noted that Verizon Wireless filed a
petition for reconsideration of the First
Report and Order with regard to certain
of the notification and coordination
obligations placed on commercial 700
MHz licensees.261 In light of this
petition, the Commission sought
comment on whether to apply any or all
of Verizon’s proposed rule changes to
the public safety broadband spectrum.
127. NPSTC supports retaining the
PFD requirement, stating that ‘‘the PFD
requirement should be retained, as it is
there to provide an environmental
baseline for which systems can be
designed in order to manage the
coexistence of various types of systems
* * * additionally, [a]ll of the
notifications should also be retained
without any redefinition (e.g. the
1 kW/MHz proposed by Verizon), as
these notifications serve as a proactive
258 See
id., 22 FCC Rcd at 15417 para. 358.
47 CFR 90.542(a)(5), (b).
260 This requirement had initially been imposed
on Upper 700 MHz C and D Block licensees to
protect public safety narrowband licensees from
interference.
261 Petition for Reconsideration of Verizon
Wireless, WT Docket No. 06–150 (filed June 14,
2007) (Verizon Petition).
259 See
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means to coordinate operations such
that interference can be avoided before
it happens.’’ 262 CEA suggests that the
Commission impose the same out of
band emission (OOBE) limit for the D
Block that applies to the C Block.’’ 263
128. Under existing rules, Upper 700
MHz Band commercial licensees (i.e., C
and D Block licensees), if operating base
stations at power levels greater than 1
kW ERP, must meet a PFD limit of 3
mW/m2 on the ground within 1 km of
each base station. They must also notify
all public safety licensees authorized
within 75 km of the base station and all
700 MHz public safety regional
planning committees with jurisdiction
within 75 km of the station of their
intention to operate the base station at
a power level greater than 1 kW ERP.
Similarly under the Commission’s rules,
the Public Safety Broadband Licensee
must satisfy this PFD requirement when
operating a base station at a power level
greater than 1 kW ERP.264 Verizon, in its
petition, seeks various changes to the
Commission PFD and notification
requirements for commercial 700 MHz
licensees, asking inter alia, that the
trigger for such requirements be
changed from 1 kW ERP to 1 kW/MHz
ERP. NPSTC, which did not file
comments in response to the Verizon
petition, appears to request that the
Commission retain the current 1 kW
ERP PFD/notification trigger for C, D,
and Public Safety Broadband licensees.
129. The Upper 700 MHz band plan
places the public safety narrowband
channels (at 769–775 MHz) in between
the Public Safety Broadband spectrum
(at 763–768 MHz) and the upper C block
(at 776–787 MHz). Thus, any decision to
modify the PFD trigger for either the
Public Safety Broadband spectrum or
the upper C block could have a potential
impact on public safety narrowband
channel operations. Therefore, rather
than deciding, in this proceeding, on the
appropriate PFD/notification trigger for
the Public Safety Broadband spectrum,
the Commission shall defer this
decision to the upcoming proceeding
addressing the Verizon petition, where
the Commission will take a
comprehensive look at the potential
consequences for the public safety
narrowband channels of modifying the
trigger for the Public Safety Broadband
Licensee and the C block licensee.
NPSTC’s comments in the instant
proceeding shall be incorporated into
262 NPSTC
Comments at 46–47.
of Consumer Equipment
Association at 6.
264 The Commission do not, however, require the
PSBB licensee to notify other 700 MHz licensees of
its intention to operate at a power level greater than
1 kW ERP.
263 Comments
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the proceeding addressing the Verizon
petition. The Commission also invites
comments from other parties on this
issue, and any such comments will be
incorporated into that proceeding as
well.
130. With regard to CEA’s suggestion
that the Commission impose the same
out-of-band emission (OOBE) limit for
both the C and D Blocks, currently the
D Block licensee is required to provide
enhanced OOBE protection 265 to only
the public safety narrowband channels,
while the C block licensee is required to
provide such protection to both the
public safety narrowband channels and
the Public Safety Broadband spectrum.
The Commission does not require the D
Block licensee to provide this extra
OOBE protection to the Public Safety
Broadband spectrum due to the special
relationship that exists between the D
Block and Public Safety Broadband
Licensee. If the Commission decides to
maintain that relationship, the
Commission tentatively concludes that
the Commission should continue to
require the D Block licensee to provide
extra OOBE protection only to the
public safety narrowband channels. The
Commission tentatively concludes as
well that if the Commission does not
maintain the existing relationship
between the D Block and Public Safety
Broadband Licensee, the Commission
should require the D Block licensee to
provide extra OOBE protection to both
the Public Safety Broadband spectrum
and the public safety narrowband
channels—and thus require C and D
Block licensees to meet the same OOBE
limits in protecting public safety
operations, as CEA suggests.
131. Satellite-capable Handset
Requirement. The Commission proposes
to continue requiring that the D Block
licensee make available to public safety
users at least one handset that includes
an integrated satellite solution, by
which the Commission means that the
handset must be capable of operating on
both the 700 MHz public safety
broadband network and on the satellite
frequency bands and/or systems of
satellite service providers with which
the Public Safety Broadband Licensee
has contracted for satellite service.266 In
addition, as under existing rules, the
265 The standard OOBE limit, which applies to
CMRS operations in various bands, requires
licensees to attenuate their emissions by a factor not
less than 43 + 10log P dB. The enhanced OOBE
protection referred to herein requires Upper 700
MHz commercial licensees to attenuate their base
station emissions by a factor not less than 76 + 10
log (P) dB and to attenuate mobile and portable
station emissions by a factor not less than 65 + 10
log (P) dB.
266 See Second Report and Order, 22 FCC Rcd at
15452 para. 464.
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Commission proposes not to establish a
specific deadline, but to leave the terms
and timeframe for the availability of the
handset to be specified in the NSA. The
Commission proposes to clarify,
however, that in the event the
Commission license the D Block on a
regional basis, the Commission do not
preclude the regional licensees from
relying on the same handset model to
meet this requirement. In addition,
because it is not clear that current or
developing technology can provide for
handoffs between a terrestrial network
and a satellite service, however, the
Commission proposes to clarify that
handsets need not provide for seamless
operation between the terrestrial and
satellite modes to meet the Commission
requirement. The Commission also
tentatively declines to adopt MSV’s
proposal that all public safety handsets
be required to be satellite-enabled. As
before, the Commission finds that the
Public Safety Broadband Licensee, in
consultation with the D Block
licensee(s), will be in the best position
to determine the extent to which public
safety equipment should have integrated
satellite capability. The Commission
invites further comment, however, on
whether it should require more than one
handset with an integrated satellite
solution and if so, what number or
percentage of devices should have that
feature.
3. Performance Requirements, License
Term, and Renewal
132. Background. In the Second
Report and Order, the Commission
decided that the D Block license would
be issued for a period of ten years and
imposed unique performance
requirements for the D Block license in
connection with the construction of the
shared wireless broadband network.
Specifically, the Commission required
the D Block licensee to provide signal
coverage and offer service to at least 75
percent of the population of the
nationwide D Block license area by the
end of the fourth year, 95 percent by the
end of the seventh year, and 99.3
percent by the end of the tenth year.267
The Commission further specified that
‘‘the network and signal levels
employed to meet these benchmarks be
adequate for public safety use * * *
and that the services made available be
appropriate for public safety entities in
those areas.’’ 268
133. Certain other requirements were
imposed to further ensure coverage of
highways and certain other areas such
267 Second Report and Order, 22 FCC Rcd at
15445 para. 437.
268 Id. at 15446 para 440.
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as incorporated communities with a
population in excess of 3,000.269 The
Commission concluded that these buildout requirements ‘‘will ensure that
public safety needs are met.’’ 270 The
Commission also required, however,
that, ‘‘to the extent that the D Block
licensee chooses to provide commercial
services to population levels in excess
of the relevant benchmarks, the D Block
licensee will be required to make the
same level of service available to public
safety entities.’’ 271
134. In addition to establishing
performance requirements and a tenyear license term, the Commission also
determined that the performance
requirements and license period would
start on February 17, 2009. The
Commission determined that this would
be the initial authorization start date
because it is the DTV transition date.272
The Commission also established that at
the end of the ten-year term the D Block
licensee would be allowed to apply for
license renewal and that renewal would
be subject to the licensee’s success in
meeting the material requirements set
forth in the NSA as well as all other
license conditions, including meeting
the performance benchmark
requirements.273 Because the initial
NSA term expired at the same time, the
Commission decided that the D Block
licensee must also file a renewed or
modified NSA for Commission approval
at the time of its license renewal
application.274 Given these detailed
license renewal requirements, the
Commission declined to impose a
separate substantial service showing in
the Second Report and Order.
135. In the Second FNPRM, the
Commission sought comment on
whether the Commission should revise
the performance requirements that the
Commission imposed on the D Block
licensee with regard to building out the
nationwide, interoperable broadband
network and, if so, how those
requirements should be revised.275
Specifically, the Commission sought
comment on whether the Commission
should retain the existing end-of-term
population benchmark of 99.3 percent
or whether the Commission should
adopt a lower population benchmark
that is equal to or more aggressive than
the 75 percent benchmark that is
applicable to the 22 megahertz C Block
269 See
id. at 15445 para. 438–15446 para. 440.
at 15445 para. 437.
271 Id. at 15446 para. 440.
272 Id. at 15450 para. 457.
273 Id. at 15450 para. 458.
274 Id.
275 Second FNPRM, 23 FCC Rcd at 8075 para. 74,
8080–86 paras. 88–105.
270 Id.
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that is licensed on REAG basis.276 The
Commission noted that each of the top
four nationwide carriers is currently
providing coverage to approximately 90
percent or more of the U.S.
population.277 Given that existing
commercial wireless infrastructure
already covers approximately 90 percent
of the population, the Commission
sought comment on whether it is
reasonable to expect that the D Block
licensee would be able to meet at least
a 90 percent of the population coverage
requirement or more, or whether some
other coverage requirement is
appropriate.
136. The Commission observed that
for the 22 megahertz C Block the
Commission required licensees to
provide signal coverage and offer
service to at least 40 percent of the
population in each EA of the REAG
license area within four years and to at
least 75 percent of the population in
each EA of the REAG license area by the
end of the ten-year license term.278
Given that the licenses in the C Block
were successfully auctioned in Auction
73, and that at least one bidder has put
together a nearly nationwide geographic
footprint with these licenses, the
Commission assumed that the D Block
licensee should, at the very minimum,
be able to meet these benchmarks with
respect to its nationwide license. The
Commission sought comment on that
assumption.
137. In addition, the Commission
invited comment on whether the
Commission should extend the license
term for the D Block license, and
possibly the Public Safety Broadband
License, if the Commission determined
to provide for construction benchmarks
that extended past the initial license
term that the Commission established
for the D Block license.279 The
Commission asked whether doing so
would make it easier for the D Block
licensee to meet the performance
requirements that the Commission
adopts. Specifically, if the Commission
were to adopt a 15-year license term, the
Commission sought comment on
whether this would increase the
commercial viability of the required
network while still meeting public
safety needs. If the Commission were to
adopt such a modification, the
Commission asked whether the interim
build-out benchmarks should be
modified. For example, the Commission
stated that the Commission could
276 Id.
at 8081 para 91.
(citing USB Warburg Investment Research,
US Wireless 411, at 17 (Mar. 18, 2008).
278 Id. at 8082 para. 94.
279 Id. at 8081 para. 90, 8083 paras. 96, 98.
277 Id.
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57777
require the D Block licensee to provide
signal coverage and offer service to at
least 50 percent of the population of the
nationwide license area by the end of
the fifth year, 80 percent of the
population of the nationwide license
area by the end of the tenth year, and
95 percent of the population of the
nationwide license area by the end of
the fifteenth year. The Commission also
noted that the NSA was to have a term
not to exceed 10 years from February 17,
2009, to coincide with the term of the
D Block license, and the Commission
asked whether the Commission should
extend the term of the NSA to be coextensive with any extended term the
Commission may adopt for the D
Block.280
138. The Commission sought further
comment on whether the Commission
should revise the Commission’s rules to
permit the D Block licensee to use
Mobile Satellite Service to help it meet
its build-out benchmarks.281 The
Commission noted that satellite services
can enable public safety users to
communicate in rural and remote areas
that terrestrial services do not reach or
in areas where terrestrial
communications networks have been
damaged or destroyed by wide-scale
natural or man-made disasters. In light
of these observations, the Commission
asked if the Commission should permit
the D Block licensee to utilize Mobile
Satellite Service as a way to meet, in
part, its build-out obligations.282
139. Parties who filed comments in
response to these issues that the
Commission raised in the Second
FNPRM, include nationwide service
providers,283 regional service
providers,284 small service providers,285
consumer electronics manufacturers,286
commercial entities,287 entities
representing rural interests,288 entities
representing public safety
280 Id.
at 8083 para. 98.
at 8083–84 para. 99.
282 Id. at 8084 para. 100.
283 AT&T Comments at 14; Sprint Nextel
Comments at 2, 14–15; US Cellular Comments 21.
284 Leap Comments at 13; NTCH Comments at 9;
SouthernLINC Reply Comments at 7.
285 ACT Comments at 2; Big Bend Comments at
2; CTC Comments at 2; Kennebec Comments at 2;
PVTC Comments at 2; Ponderosa Comments at 2;
Smithville Comments at 2; Spring Grove Comments
at 2; Van Buren Comments at 2; Wiggins Comments
at 2.
286 CEA Comments at 3; Ericsson Comments at 26;
Motorola Comments at 13; Qualcomm Comments at
11; Motorola Reply Comments at 4.
287 ComCentric Comments at 4; Coverage Co.
Comments at 6; GEOCommand Comments at 9;
Google Comments at 12; Interisle Comments at 6;
Rivada Comments at 2; Space Data Reply Comments
at 2; Televate Comments at 4; Tyco Comments at
5; Wirefree Comments at 15.
288 Council Tree Comments at 14.
281 Id.
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organizations,289 and citizens.290 In
addition, several local governments
filed comments.291 Most contend that
the current final benchmark
requirement—that the network cover at
least 99.3 percent of the population
nationwide within 10 years—is
unrealistic. For instance, AT&T states
that the requirement ‘‘to build out the
public/private network to cover 99.3
percent of the population nationwide
within ten years’’ ‘‘may have been
overly aggressive.’’ 292 Likewise,
Interisle believes that the ‘‘99.3%
benchmark for year 10 coverage of the
population is unrealistically high.’’ 293
140. A range of final benchmarks to
levels less than 99.3 percent are
proposed in the comments of many
commercial commenters. For example,
some of these commenters propose a
final benchmark of 95 percent
population coverage.294 Northrop
Grumman asks ‘‘the Commission to
adopt a coverage benchmark of
95%,’’ 295 which it considers to be ‘‘a
much more reasonable level for an
especially cost-intensive build-out of
new network service.’’ 296 Televate
believes that the D Block licensee
should ‘‘serve at least 95 [percent] of the
population.’’ 297 Space Data, however,
argues that there is no need to relax the
performance requirements that apply to
the 700 MHz D Block spectrum.298
141. Leap recommends that the
‘‘performance requirements relating to
the construction of the network should
be set at the same level as was set for
the C Block in Auction 73.’’ 299 In its
reply comments, Council Tree
‘‘endorses’’ Leap’s proposal that the
‘‘network construction requirements for
the D Block license be modified to
match those that applied to the Upper
700 MHz Band C Block licenses
awarded in Auction 73.’’ 300
SouthernLINC encourages the
Commission to reject those arguments
289 AASHTO Comments at 11; APCO Comments
at 14; NATOA Comments at 8; NENA Comments at
2; NPSTC Comments at 12; Region 6 Comments at
2; Region 20 Reply Comments at 14; Region 33
Comments at 18; PSST Comments at 34.
290 Bazelon Comments at 14; Newman Comments
at 4; Pela Comments at 5.
291 ADA County Sheriff’s Office Comments at 2;
Philadelphia Comments at 2.
292 AT&T Comments at 14.
293 Interisle Comments at 6.
294 See Sprint Nextel Comments (advocating 95
percent with a bidding credit if the bidder commits
to greater); Northrop Grumman Comments at 5. See
also ACT Comments at 2.
295 Northrop Grumman Comments at 5; Northrop
Grumman Reply Comments at 1.
296 Northrop Grumman Comments at 5.
297 Televate Comments at 9.
298 Space Data Reply Comments at 2.
299 Leap Comments at 13.
300 Council Tree Reply Comments at 14.
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that call for network construction based
on ‘‘commercial-level best practices for
reliability’’ or C Block-type coverage
requirements of only 75% of the
population.’’ 301 If public safety agencies
only need commercial-grade wireless
coverage, SouthernLINC states that they
should simply subscribe to existing
commercial offerings. A number of other
parties simply recommend that the
Commission proposes more realistic
benchmarks without offering a specific
percent coverage of the population.
142. A few public safety commenters
support 95 percent or lower population
coverage, including the National
Regional Planning Council (NRPC).302
NRPC reasons that ‘‘[w]ith commercial
wireless operations today already
covering approximately 90% of the U.S.
population base, this would be a good
starting point with a goal of adequate
broadband coverage over 95% of the
U.S. population within the 10-year
license term.’’ 303 Region 6, 700 MHz
Planning Committee (Region 6), asserts
that a more ‘‘realistic’’ performance
requirement ‘‘would be 95% of the
United States population within all
Urban Areas as defined by the Federal
Department of Homeland Security,
while allowing the successful bidder to
expand that coverage upon execution of
Memorandum of Understandings with
any remaining governmental
agencies.’’ 304 In addition, Region 33
considers 99.3 percent ‘‘unrealistic’’ and
supports a reduction down to 90
percent, asserting this would be ‘‘more
attainable and feasible.’’ 305
143. Other national public safety
commenters, however, have not
advocated for a reduction in
performance requirements, or for a more
modest reduction. NATOA does not
appear to support any reductions in
performance requirements. APCO
argues for an extension of the deadlines
of five years, but does not discuss
reductions in the final benchmark level.
PSST and NPSTC argue for a reduction
to 98 percent.306 NENA supports a
‘‘reasonable’’ reduction of the 99.3
percent requirement, but does not
specify to what level.
144. In its en banc testimony, US
Cellular states that the standards ‘‘for
population coverage and reliability
should be achieved over the license
term, and the rules should allow
reasonable differences in build-out and
301 SouthernLINC
Reply Comments at 7.
Comments at 4; RPC 6 Comments at 2;
RPC 33 Comments at 18.
303 NRPC Comments at 4.
304 RPC 6 Comments at 2.
305 RPC 33 Comments at 18.
306 306 PSST Comments at 5; NENA Comments at
2; NPSTC Comments at 12.
302 NRPC
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performance based on the population
density of the license areas.’’ 307 US
Cellular proposes that the rules ‘‘specify
a range for population coverage,
permitting the PSST, in consultation
with public safety entities and potential
bidders, to specify the requirements for
specific areas as part of the NSA put
forward pre-auction.’’ 308 US Cellular’s
example of such a tiered structure
reflects four tiers of coverage
requirements of 86, 90, 94, and 98
percent, from lowest to highest
population densities, for license areas
based on NPSPAC regions.309
145. Some commenters argue that
keeping the existing 99.3 percentage
population benchmark is acceptable as
long as the Commission extends the
time period to meet this objective.
Ericsson does not believe that the
Commission needs to lower the end-oflicense term coverage requirement to
less than 99.3% of population, if the
Commission lengthens the D Block
license term. Ericsson states that
extending the D Block license term from
‘‘10 years to 15, 20, or even 25 years
would allow the schedule of build-out
milestones to be spread across a longer
time period.’’310 Likewise, Council Tree
contends that, ‘‘[g]iven the uncertainties
inherent in the 700 MHz Public/Private
Partnership,’’ the D Block license term
‘‘should be extended from ten years to
twenty years in duration regardless of
the determinations the Commission
makes with respect to its performance
requirements.’’ 311 Wirefree also
‘‘supports extending the license term
from 10 to 15 years as a fair trade off for
building a shared use network for public
safety.’’ 312
146. Some public safety organizations
also support extending the D Block
license term. PSST suggests that if the
Commission keeps the existing 99.3
percentage of population benchmark,
then the Commission should ‘‘extend
307 Testimony of LeRoy T. Carlson, Jr., Chairman,
US Cellular, FCC En Banc Hearing, Brooklyn, New
York, Federal Communications Commission, July
30, 2008, https://www.fcc.gov/realaudio/
presentations/2008/073008/carlson.pdf (Carlson
Testimony) at 3.
308 Id. at 3–4.
309 Id. at 8. In its comments and reply comments,
US Cellular suggests that the Commission should
require the D Block licensee to ‘‘provide signal
coverage and offer service to at least 50 percent of
the population of the nationwide license area by the
end of the fifth year, 80 percent of the population
of the nationwide license area by the end of the
tenth year, and 95 percent of the population of the
nationwide license area by the end of the fifteenth
year.’’ US Cellular Comments at 21 & n.43, citing
Second FNPRM, at para. 95; US Cellular Reply
Comments at 12.
310 Ericsson Comments at 26.
311 Council Tree Comments at 19.
312 Wirefree Comments at 15.
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the D Block license term (and the PSBL
license term) by five years with a
corresponding extension of the current
construction requirements.’’ 313
AASHTO believes that ‘‘reaching 99.3%
of the population within ten years from
the issuance of a license is admirable
and perhaps can remain as an ultimate
goal, but with an increased time span to
achieve the goal.’’ 314 APCO contends
that it is reasonable ‘‘to extend the
timelines of some of these benchmarks
by five years (with a corresponding
extension of the license term).’’315
NENA supports a reasonable reduction
in build-out requirements, ‘‘e.g.,
reducing the 99.3% geographic buildout requirement to a 15-year license
term’’ rather than the current 10 year
license term.316
147. Comcentric, Leap, and Ericsson
support the notion that the Commission
should allow the D Block licensee to
meet, at least in part, its build-out
obligation through the use of Mobile
Satellite Service. For areas without
terrestrial network coverage, Leap
indicates that the Commission could
ensure that public safety officials have
adequate service by permitting the
carrier to use other alternatives for
satisfying coverage requirements (e.g.,
satellite).317 Ericsson states that the
Commission should allow the D Block
licensee to meet the interim benchmarks
though satellite service, but that the
licensee should be required to meet the
final benchmark only through the use of
terrestrial broadband facilities.318
Comcentric argues that the public
broadband network should cover ‘‘a
minimum of 98% of the population
with terrestrial links and 100% of the
geographic area with ‘in motion’
satellite connectivity for rural public
safety officers.’’319
148. Discussion. The Commission
tentatively concludes that the
Commission should modify the
population-based performance
requirements and the length of the
license term that the Commission
adopted in the Second Report and Order
for the D Block spectrum in order to
make this spectrum more commercially
viable while at the same time ensuring
that public safety needs are met. As
discussed below, the Commission
proposes to require the D Block
licensee(s) to meet performance
requirements based on PSRs, regardless
313 PSST
Comments at 34.
Comments at 11.
315 APCO Comments at 30.
316 NENA Comments at 2.
317 Leap Comments at 13; Leap Reply Comments
at 9.
318 Ericsson Comments at 28.
319 Comcentric Comments at 4.
314 AASHTO
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of whether the D Block license is
regional or nationwide. The
Commission proposes that a D Block
licensee must meet specified population
coverage benchmarks at the end of the
fourth, tenth, and fifteenth years of its
license term, and that it must meet these
benchmarks in each PSR over which it
is licensed, regardless of whether the D
Block spectrum is licensed on a regional
or nationwide basis.
149. Specifically, the Commission
tentatively concludes that the
licensee(s) of D Block spectrum be
required to provide signal coverage and
offer service to at least 40 percent of the
population in each PSR by the end of
the fourth year, and 75 percent by the
end of the tenth year. The Commission
proposes to adopt a ‘‘tiered’’ approach
after 15 years for the final benchmark,
applying one of three benchmarks
depending on the population density of
the PSR: (1) For PSRs with a population
density less than 100 people per square
mile, the licensee(s) will be required to
provide signal coverage and offer
service to at least 90 percent of the
population by the end of the fifteenth
year; (2) for PSRs with a population
density equal to or greater than 100
people per square mile and less than
500 people per square mile, the
licensee(s) will be required to provide
signal coverage and offer service to at
least 94 percent of the population by the
end of the fifteenth year; and (3) for
PSRs with a population density equal to
or greater than 500 people per square
mile, the licensee(s) will be required to
provide signal coverage and offer
service to at least 98 percent of the
population by the end of the fifteenth
year.320 These revised population
coverage requirements will have to be
met on a PSR basis, and the licensee(s)
will have to use the most recently
available decennial U.S. Census data at
the time of measurement to meet the
requirements. The Commission also
tentatively concludes to revise the
length of the D Block license term from
10 to 15 years so that it coincides with
the Commission proposed end-of-term
performance requirements. The
Commission also tentatively concludes
that the Commission will not impose a
separate substantial service showing for
license renewal apart from requiring
that a D Block licensee meet the
requirements set forth in the NSA and
the Commission’s proposed
performance requirements, with the
possible exception of the Gulf of Mexico
PSR, as discussed below. The
320 See Appendix B (listing the minimum
coverage requirements at the end of fifteen years for
each of the regions).
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57779
Commission seeks comment on these
tentative conclusions.
150. The Commission’s proposal
would thus modify both the final and
interim D Block performance
requirements under the existing rules.
Most significantly, the Commission
proposes to reduce the final
performance benchmark from 99.3
percent to the three tiers discussed
above and extend the period for
achieving the appropriate benchmark
from 10 to 15 years. The Commission
tentatively concludes that adoption of
the interim and end-of-term
performance requirements will increase
opportunities for participation by a
larger pool of bidders, 321 and local and
regional build-out will ensure that
deployment is responsive to the needs
of local public safety groups.322 The
Commission also tentatively concludes
that a final benchmark of 99.3 percent
of population would likely not be
commercially feasible, but that the
benchmarks under the Commission’s
tiered proposal are achievable. For
example, the record indicates that 95
percent coverage is achievable,323 and
that reducing the final benchmark from
99.3 percent for a nationwide license
will result in significant savings in
capital and operational expenses. Space
Data estimates that reducing the 10-year
coverage requirement from 99.3 percent
to 95 percent population nationwide
will result in a capital expense savings
of $1.0565 billion and an operating
expense savings of $2.280 billion.324
MSV estimates that reducing the 10-year
coverage requirement from 99.3 percent
to 95 percent population nationwide
would result in a capital expense
savings of $4.44 billion and an operating
expense savings of $7.056 billion.325
Thus, based on the record, the
Commission tentatively concludes that
the Commission’s proposed new
benchmarks along with extending the
final benchmark to fifteen years, will
make building out a network more
viable economically than under the
current benchmarks while also ensuring
that public safety needs are met. The
321 See
Carlson Testimony at 2–3.
AT&T Comments at 25.
323 See, e.g., ACT Comments at 2; NNRPC
Comments at 4; Northrop Grumman Comments at
5; Region 6 Comments at 2; Region 33 Comments
at 18; Sprint Nextel Comments at 2; US Cellular
Comments at 5.
324 See Space Data Comments at Exhibit A.
325 See MSV Comments at 44. See also Testimony
of Lawrence R. Krevor, Sprint-Nextel Corp., Public
Hearing on Public Safety Interoperable
Communications—The 700 MHz Band Proceeding,
Federal Communications Commission, July 30,
2008, https://www.fcc.gov/realaudio/presentations/
2008/073008/krevor.pdf, at 2 (increasing coverage
from 95 percent to 99.3 percent would increase
costs by more than $6 billion).
322 See
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Commission notes that while most of
the licensees will meet a population
benchmark of either 90 or 94 percent in
year fifteen, the Commission’s proposal
for the third tier will require at least 98
percent coverage with a population
density equal to or greater than 500
people per square mile. However,
according to U.S. Cellular’s proposal,
this 98 percent requirement would
apply to only six percent of the total
number of NPSPAC regions, and
licensees that would have to meet this
requirement may be able to build on
existing infrastructure thus making
commercial opportunities more
attractive.326 The Commission seeks
comment on these conclusions.
151. The Commission tentatively
concludes that the three tiers of
population benchmarks remain an
aggressive requirement, given that
existing commercial infrastructure
currently covers only approximately 90
percent of the nation’s population,327
and that the highest level of population
coverage required of any other
commercial 700 MHz licensee is 75
percent.328 Therefore, the Commission
also tentatively concludes that the
Commission should extend the time
provided to the D Block licensee to meet
its end-of-term build-out requirement
from ten to fifteen years.329 Giving the
D Block licensee five additional years to
meet the final benchmark will provide
the licensee with additional time to
raise capital and construct its wireless
network. It will also give the D Block
licensee more flexibility and the ability
to lower its construction costs.330 As a
result, the Commission’s proposal to
give the D Block licensee five additional
years to build out its network should
help to stimulate commercial interest in
the D Block spectrum. The Commission
also notes that a fifteen year period to
accomplish the final performance
requirement also receives support from
public safety commenters.331 For these
reasons, the Commission tentatively
326 See
Carlson Testimony at 2, 8 & n.5.
NPRC Comments at 4; Sprint Nextel
Comments at 2; see also Second FNPRM, 23 FCC
Rcd at 8084 para. 91 (citing USB Warburg
Investment Research, US Wireless 411, at 17 (Mar.
18, 2008); MSV Comments at 8 (noting that ‘‘[t]he
top four national wireless carriers cover on average
only 92.7% of the US population’’).
328 Second Report and Order, 22 FCC Rcd at
15351 para. 162 (discussing performance
requirements for REAG licenses, i.e., C Block).
329 Both public safety and commercial entities
support expanding the time period that the D Block
licensee has to meet the final performance
requirement. See, e.g., AASHTO Comments at 11;
APCO Comments at 30; Council Tree Comments at
19; Ericsson Comments at 26; NENA Comments at
2; PSST Comments at 34; Wirefree Comments at 15.
330 Ericcson Comments at 26.
331 See, e.g., PSST Comments at 34.
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327 See
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concludes that the proposed final
benchmark which uses a three-tiered
requirement at 15 years, as discussed
above, provides the most aggressive
coverage requirement that will still
provide an adequate level of commercial
feasibility, and the Commission seeks
comment on this tentative conclusion.
152. The Commission’s proposal also
imposes new interim coverage
requirements. Specifically, instead of
the current interim requirements of 75
percent at four years and 95 percent at
seven years, the Commission proposes
to require 40 percent at four years and
75 percent at ten years. These interim
requirements are identical to the
population coverage levels required of
700 MHz C Block REAG licensees at the
4 year and 10 year periods. The fact that
all of the C Block licenses were
successfully auctioned supports the
conclusion that these interim
requirements are commercially
viable.332 Thus, the Commission
tentatively concludes that the interim
coverage benchmarks for the D Block of
40 percent of the population in four
years and 75 percent in ten years are
commercially viable and will lead to a
successful auction of the D Block
spectrum. Setting the first benchmark at
four years should also provide an
adequate period for the development of
new advanced technologies so that these
technologies can be incorporated into
the network implemented by the D
Block licensee. At the same time, the
Commission proposed interim
benchmarks will still help to ensure that
the D Block licensee will begin
providing service to a significant
portion of the nation’s public safety
community well in advance of the end
of its license term. Thus, these proposed
benchmarks for the D Block licensee are
designed to balance the need to expedite
the deployment of an interoperable,
broadband public safety network with
an appropriate consideration of
commercial viability and the need to
allow sufficient time for new and
innovative wireless broadband
technologies to develop. By proposing
the Commission three-tiered benchmark
with coverage levels at 90 percent or
higher, the Commission addresses the
special coverage needs of public safety
yet ensure this is commercially
achievable by affording the D Block
Licensee an additional five years to
achieve this requirement. Accordingly,
the Commission tentatively concludes
that the Commission proposed interim
benchmarks are consistent with the
Commission goal of establishing a
332 See Leap Comments at 13; Council Tree Reply
Comments at 14.
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national interoperable public safety
network that will provide state-of-theart service to the Public Safety
Broadband Licensee. The Commission
seeks comment on the Commission
tentative conclusion to establish the
interim coverage requirements for the D
Block as 40 percent of the population in
four years and 75 percent in ten years,
for each of the 58 PSRs.
153. The Commission tentatively
concludes that the D Block licensee
should not be permitted to satisfy its
performance benchmarks through the
provision of non-terrestrial services
such as MSS. The Commission finds
that MSS and other non-terrestrial
technologies cannot currently provide
broadband capabilities comparable to
those of a broadband terrestrial network.
Further, given the significant reduction
in geographic area that will need to be
covered under the Commission’s
proposed population based benchmarks
and the additional time the Commission
is proposing to provide the D Block
licensee to build out, the Commission
tentatively concludes that it is
reasonable to expect the D Block
licensee to meet the Commission’s
proposed benchmarks by building out a
terrestrial wireless network. Under the
Commission’s proposal, the D Block
licensee will have fifteen years to build
out a terrestrial wireless network to
meet the final performance benchmarks.
Therefore, requiring the D Block
licensee to build out a terrestrial
wireless network rather than relying on
Mobile Satellite Service or other such
technologies should not undercut the
Commission goal of making this
spectrum more attractive to commercial
development and should help ensure
the development of a robust public
safety network. The Commission seeks
comment on these tentative
conclusions.
154. To meet the Commission’s
proposed performance requirements, the
Commission tentatively concludes that
the Commission will require the D
Block licensee to use the most recently
available U.S. Census Data and that the
licensee meet the Commission’s
performance requirements on a PSR
basis.333 The Commission recognizes
that commercial providers typically
focus exclusively on building out high
population areas and that first
responders have needs in smaller towns
and rural areas. However, by proposing
333 The Commission notes that, by the ‘‘most
recently available U.S. Census data,’’ the
Commission means only the most recent decennial
update to the U.S. Census, currently the 2000 U.S.
Census Data, and not any estimates or revisions that
have occurred between the official decennial
updates.
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to require that the performance
benchmarks be calculated on a PSR
basis even in case of a nationwide
license, the Commission will ensure
that areas with smaller populations and
rural areas receive coverage.
Accordingly, to meet the benchmarks,
the Commission tentatively concludes
that the D Block licensee will be
required to provide signal coverage and
offer service to at least 40 percent of the
population in each PSR license area
within four years, 75 percent of the
population in each PSR license area
within ten years, and an appropriate
percent of the population in each PSR
license area within 15 years.334 The
Commission also proposes to clarify
that, to count toward the satisfaction of
the Commission’s performance
requirements, any build-out must
provide service that meets the signal
levels and other technical requirements
that the Commission proposes in this
Third FNPRM. Further, to the extent
that the D Block licensee chooses to
provide terrestrial commercial services
to population levels in excess of the
relevant benchmarks, the Commission
proposes that the D Block licensee be
required to make the same level of
coverage and service available to public
safety entities. The Commission seeks
comment on these proposals.
155. In order to promote an additional
degree of coverage in rural areas, the
Commission proposes to continue, with
some modifications, requiring that the D
Block licensee extend coverage to major
highways and interstates. The
Commission further proposes to clarify,
however, that any coverage necessary to
provide complete service to major
highways, interstates, and incorporated
communities with populations greater
than 3,000 beyond the network coverage
required by the Commission’s
population benchmarks must be
established no later than the end of the
D Block license term. In addition, the
Commission proposes that to the extent
that coverage of major highways,
interstates and incorporated
communities with populations in excess
of 3,000 requires the D Block licensee to
extend coverage beyond what is
required to meet its population
benchmarks, the Commission would
permit that coverage to be met through
non-terrestrial means, such as MSS or
other such technologies. As discussed
above, the Commission tentatively
concludes that the proposed population
coverage benchmarks provide the best
balance between maximizing coverage
and ensuring commercial viability of the
network and therefore, that reliance on
334 See
Appendix B.
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non-terrestrial technologies is justified
to the extent that the proposed
requirements regarding major highways,
interstates, and small communities
would impose a more onerous build-out
obligation. In order to provide the D
Block licensee with the flexibility to use
a myriad of innovative solutions,
including non-terrestrial technologies,
the Commission seeks comment on
whether any of its existing rules for this
band regarding terrestrial base stations
or land stations may need to be clarified
or modified to be applicable to nonterrestrial technologies that perform the
same functions of terrestrial base
stations and that comply with service
rules applicable to the D Block and the
Public Safety Broadband spectrum,
including rules regarding interference
protection and network
specifications.335
156. To further facilitate public safety
access to the network in low or zeropopulation areas where the network has
not yet been constructed and to satellite
services more broadly, the Commission
proposes to maintain the current
requirement that the D Block licensee
make available to the Public Safety
Broadband Licensee at least one handset
suitable for public safety use that
includes an integrated satellite solution
under terms, conditions, and timeframes
set forth in the NSA. The Commission
seeks comment on these tentative
conclusions.336
157. The Commission tentatively
concludes to revise the D Block license
term and performance requirements
start date from February 17, 2009, to the
date that the D Block licensees receive
their licenses. The Commission
previously anticipated that the D Block
licensee would receive its license prior
to February 17, 2009. Given that the
Commission no longer expects to
license the D Block before February 17,
2009, the Commission tentatively
concludes that the D Block license term
and performance requirements start date
should be the license grant date as is
consistent with other wireless
335 See Space Data Ex Parte September 17, 2008
letter to Marlene H. Dortch at 4–5 (requesting,
among other things, that the Commission: (1)
Amend the definition of ‘‘base station’’ in Section
27.4 of the rules to include ‘‘technologies that
perform the same functions as land stations,’’ and/
or (2) provide that any technical requirements in
Sections 27.50–27.70 that apply to base stations or
fixed towers similarly apply to non-traditional
technologies that perform the same functions as
base stations or towers.).
336 As discussed elsewhere in this Third FNPRM,
the Commission also proposes to continue requiring
the NSA to include a detailed build-out schedule
that is consistent with the performance benchmarks
and requirements that the Commission proposes
above.
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services.337 The Commission seeks
comment on the Commission’s tentative
conclusion that the Commission should
use the license grant date as the start
date for the D Block license term and
performance requirements.
158. The Commission proposes to
continue to allow the D Block licensee
to modify its population-based
construction benchmarks where the D
Block licensee and the Public Safety
Broadband Licensee reach agreement
and the Commission gives its prior
approval for a modification. This
approach would allow a certain limited
degree of flexibility to meet commercial
and public safety needs where those
needs may deviate from the
Commission’s adopted construction
benchmarks. As with other commercial
700 MHz Band licensees, the D Block
licensee will be required under the
Commission’s proposal to demonstrate
compliance with the Commission’s
adopted benchmarks by filing with the
Commission within 15 days of passage
of the relevant benchmarks a
construction notification comprised of
maps and other supporting documents
certifying that it has met the
Commission’s performance
requirements.338 The construction
notification, including the coverage
maps and supporting documents, must
be truthful and accurate and not omit
material information that is necessary
for the Commission to make a
determination of compliance with the
Commission’s performance
requirements.339 However, unlike some
other commercial licenses and because
of the nature of the partnership
established herein, the D Block licensee
will not be subject to a ‘‘keep-what-youuse’’ rule. Rather, the Commission will
strictly enforce these build-out
requirements and, if the D Block
licensee fails to meet a construction
benchmark, the Commission may cancel
its license, depending on the
circumstances, or take any other
appropriate measure within its
authority. The Commission seeks
comment on these proposals.
159. As stated above, the Commission
also tentatively concludes to revise the
license term for the D Block license
See, e.g., 47 CFR 1.946.
47 CFR 1.946(d) (‘‘The notification must
be filed with Commission within 15 days of the
expiration of the applicable construction or
coverage period.’’).
339 See, e.g., 47 CFR 1.17 (Truthful and accurate
statements to the Commission); 47 CFR 1.917
(‘‘Willful false statements made therein, however,
are punishable by fine and imprisonment, 18 U.S.C.
1001, and by appropriate administrative sanctions,
including revocation of station license pursuant to
312(a)(1) of the Communications Act of 1934, as
amended.’’).
337
338 See
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from 10 to 15 years. By making this
change, the Commission will provide
for uniformity in the length of the
performance requirement period and the
length of the D Block license term.
Further, allowing a significantly longer
license term overall has the separate
benefit of affording additional
investment confidence and certainty.
Public safety commenters and
commercial entities support extending
the D Block license term and the related
period of time to meet the Commission
proposed performances
requirements.340 By having the license
term and performance requirement
period end at the same time, it will be
easier to assess whether the D Block
license should be renewed. The
Commission seeks comment on these
tentative conclusions.
160. The Commission also proposes
not to require the D Block licensee to
make a separate substantial service
showing for license renewal consistent
with the Commission findings in the
Second Report and Order.341 At the end
of the 15 year license term, the D Block
licensee will be permitted to apply for
license renewal and that renewal will be
subject to the licensee’s success in
meeting the material requirements set
forth in the NSA as well as all other
license conditions, including meeting
the Commission’s proposed
performance requirements. Given these
detailed license renewal requirements,
the Commission does not propose to
impose a separate substantial service
showing requirement, with the possible
exception of the Gulf of Mexico, as
discussed below. The Commission seeks
comment on this tentative conclusion to
not impose on the D Block licensee a
separate substantial service showing
apart from meeting the requirements set
forth in the NSA and the Commission’s
proposed performance requirements.
161. With respect to the Gulf of
Mexico PSR, the Commission notes that
this PSR covers a body of water and,
therefore, its proposed population-based
benchmarks may not be appropriate for
this PSR to meet public safety needs in
that region. In addition, local and state
public safety entities may have very
limited operations in this region.
Accordingly, the Commission proposes
that it give the D Block licensee for the
Gulf of Mexico PSR and the Public
Safety Broadband Licensee flexibility to
negotiate, as part of the NSA, a coverage
and service plan for public safety use for
340 See, e.g., AASHTO Comments at 11; APCO
Comments at 30; Council Tree Comments at 19;
Ericsson Comments at 26; NENA Comments at 2;
PSST Comments at 34; Wirefree Comments at 15.
341 See Second Report and Order, 22 FCC Rcd at
15450 para. 458.
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that region as needed, subject to
Commission resolution in the event of
disputes. The Commission also seeks
comment on whether it is sufficient to
require the Gulf of Mexico D Block
licensee to make a showing of
substantial service as a condition of
licensee renewal, as other 700 MHz
licensees are currently required to do,342
as well as a showing of the D Block
licensee’s success in meeting the
material requirements set forth in the
NSA and all other license conditions.
The Commission notes that, as proposed
above, any build-out would have to
meet the signal levels and other
technical requirements that the
Commission proposes in this Third
FNPRM. With respect to the Gulf of
Mexico PSR, the Commission notes that
this PSR covers a body of water and,
therefore, the proposed populationbased benchmarks may not be
appropriate for this PSR to meet public
safety needs in that region. In addition,
local and state public safety entities may
have very limited operations in this
region. Accordingly, the Commission
proposes that it give the D Block
licensee for the Gulf of Mexico PSR and
the Public Safety Broadband Licensee
flexibility to negotiate, as part of the
NSA, a coverage and service plan for
public safety use for that region as
needed, subject to Commission
resolution in the event of disputes. The
Commission also seeks comment on
whether it is sufficient to require the
Gulf of Mexico D Block licensee to make
a showing of substantial service as a
condition of licensee renewal, as other
700 MHz licensees are currently
required to do,343 as well as a showing
of the D Block licensee’s success in
meeting the material requirements set
forth in the NSA and all other license
conditions. The Commission notes that,
as proposed above, any build-out would
have to meet the signal levels and other
technical requirements that it proposes
in this Third FNPRM.
162. As a result of the Commission’s
tentative conclusion to revise the
license term for the D Block license
from 10 to 15 years, the Commission
also tentatively concludes to extend the
license term for the Public Safety
Broadband Licensee. In adopting the 10year licensee term for the Public Safety
Broadband Licensee, the Commission
sought to harmonize the license terms to
facilitate the contemplated leasing
arrangement and build-out
requirements.344 Extending the license
342 47
CFR 27.14(e).
343 47 CFR 27.14(e).
344 See Second FNPRM, 23 FCC Rcd at 8083 para.
98.
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term from 10 years to 15 years for the
Public Safety Broadband Licensee will
be consistent with this reasoning. Also,
the Commission tentatively concludes
that the license term of the Public Safety
Broadband Licensee should recommence from the date that the D
Block licensee receives its license,
consistent with the Commission’s
determination to change the start date of
the license term for the D Block licensee
to that date. The Commission seeks
comment on these tentative conclusions
to extend the license term of the Public
Safety Broadband Licensee.345 The
Commission proposes that, if the
Commission extends these license terms
to 15 years, the Commission should also
mandate a 15-year NSA term.
163. The Commission proposes to
continue requiring the NSA to include
a detailed build-out schedule that is
consistent with the performance
benchmarks that the Commission has
proposed in this section.346 Thus, the
Commission proposes to continue to
require the NSA to identify the specific
areas of the country that will be built
out and the extent to which major
highways and interstates, as well as
incorporated communities with a
population in excess of 3,000, within
the D Block licensee’s service area will
be covered by each of the performance
deadlines.
164. Finally, the Commission seeks
comment on an alternative approach to
the one the Commission has tentatively
concluded to adopt for purposes of
performance requirements, license term,
and renewal in this Third FNPRM.
Specifically, under such an alternative
approach, the Commission could
require the D Block licensee to provide
signal coverage and offer service to at
least 40 percent of the population of the
license area by the end of the fourth
year, 75 percent of the population by the
end of the tenth year, and 95 percent of
the population by the end of the
fifteenth year. The requirements under
this alternative approach will have to be
met on a PSR basis, and licensees will
have to use the most recently available
decennial U.S. Census data at the time
of measurement to meet the
requirements. As a part of this
alternative approach, the Commission
also proposes to revise the length of the
D Block license term from 10 to 15 years
so that it coincides with the
Commission proposed end-of-term
performance requirements. The
345 Elsewhere in this Third FNPRM, the
Commission similarly proposes extending the
initial term of the NSA to 15 years.
346 See Second Report and Order, 22 FCC Rcd at
15449 para. 453.
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Commission seeks comment on this
alternative approach, and specifically
on the adoption of a 95 percent coverage
requirement by the end of the fifteenth
year of the license term instead of the
three tiered approach which the
Commission proposes elsewhere in this
Third FNPRM.
4. Role and Responsibilities of the D
Block Licensee in the Management,
Operations, and Use of the Network
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165. Background. In adopting the 700
MHz Public/Private Partnership in the
Second Report and Order, the
Commission sought to delineate the
respective roles and responsibilities of
the D Block licensee and the Public
Safety Broadband Licensee in a manner
that would ensure the construction and
operation of a shared, interoperable
broadband network infrastructure that
operated on the 20 megahertz of
spectrum associated with the D Block
license and the Public Safety Broadband
License and that served both the needs
of commercial and public safety
users.347 Under this plan, the D Block
licensee and its related entities would
finance, construct, and operate the
shared network,348 but the full extent of
the D Block licensee’s operational role
was not specified. In particular, the
Commission indicated that the Public
Safety Broadband Licensee, which
would be required to lease its spectrum
on a secondary basis to the D Block
licensee pursuant to a spectrum
manager leasing arrangement,349 would
also have operational control of the
network ‘‘to the extent necessary to
ensure public safety requirements are
met.’’ 350 In the Second FNPRM, the
Commission sought comment on
whether additional clarity with regard
to the role and responsibilities of the D
Block licensee would be helpful to
ensure that the 700 MHz Public/Private
Partnership achieves its goal in creating
a shared, interoperable broadband
network.351 In particular, the
Commission indicated the
Commission’s expectation that the D
Block licensee would establish a
network operations system, including
an operations/monitoring center, billing
functions, and customer care services,
among other elements, to support the
network infrastructure that it deployed
and the services that it provided over
that infrastructure to public safety
347 See, e.g., 22 FCC Rcd at 15426 para. 383,
15431 para. 396.
348 See, e.g., id. at 15428 para. 386.
349 See id. at 15437–38 ¶¶ 414–17.
350 See id. at 15434 para. 405.
351 See Second FNPRM, 23 FCC Rcd at 8088 para.
113.
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entities.352 The Commission sought
comment on whether the Commission
should provide that all such traditional
network service provider operations for
the benefit of either commercial users or
public safety users should be
responsibilities exclusively assumed by
the D Block licensee, and whether
assigning such responsibilities
exclusively to the D Block licensee
would better enable the Public Safety
Broadband Licensee to administer
access to the national public safety
broadband network by individual public
safety entities and to perform its other
related responsibilities.353
166. Comments. Several
commenters—including both
commercial and public safety entities—
state that the D Block licensee should
maintain control of the network, subject
to some limited areas of operational
authority by the Public Safety
Broadband Licensee. For instance,
AT&T argues that commercial partners
should have ‘‘day-to-day’’ operational
control over the entire network, ‘‘subject
only to discrete PSBL operational
authority defined by the Commission
prior to the RFP process or a
reauction.’’ 354 Similarly, Ericsson
contends that that the D Block licensee
should run a substantial part of the
network on a ‘‘day-to-day’’ basis.355
167. The PSST argues against
allowing the D Block licensee ‘‘sole
control over all of the traditional
network service provider operations,
including those associated with the
spectrum for which the PSST is the
licensee.’’ 356 It argues that providing
the D Block licensee with ‘‘sole control’’
will impair the Public Safety Broadband
Licensee’s abilities to administer access
and carry out its other obligations, and
that fulfilling its functions in the 700
MHz Public/Private Partnership, such as
monitoring the D Block licensee’s
compliance with the terms of the NSA,
‘‘requires that the PSST not be passive
or entirely dependent on the activities
and assurances of the D Block
operator.’’ 357 The PSST further asserts
that the Public Safety Broadband
352 See Second FNPRM, 23 FCC Rcd at 8088–89
para. 115.
353 See Second FNPRM, 23 FCC Rcd at 8088–89
para. 115
354 AT&T Comments at 16.
355 Ericsson Comments at 30. See also APCO
Comments at 35 (arguing that the D Block licensee
should manage the network, and that the Public
Safety Broadband Licensee needs to move towards
a management structure that monitors D Block
licensee contract performance and service relations,
without duplicating the D Block licensee’s core
function or neglecting the agencies and citizens the
PSBL is charged to protect).
356 PSST Comments at 11–12.
357 PSST Comments at 13.
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Licensee must continue to have a
‘‘direct relationship’’ with public safety
users.358
168. The PSST argues that allowing
‘‘the D Block licensee to assume sole
control of all traditional network service
provider operations on PSBL spectrum
would be even more problematic should
the FCC authorize a wholesale-only
model for the D Block licensee.’’ 359
Under a wholesale-only approach, it
argues, ‘‘it is not at all clear who would
deliver the necessary services to public
safety agencies, including ensuring that
the primary goal of interoperability is
satisfied in an environment where
different services might be made
available by individual retail providers
in different markets, or even in the same
market.’’ 360 Accordingly, it states, if the
D Block winning bidder elects a
wholesale model, ‘‘the PSST and FCC
will need to be confident that the
specific needs of public safety users
nonetheless will be met. In addition, the
PSST asserts that the D Block licensee’s
responsibilities should include
delivering ‘‘to the Public Safety
Broadband Licensee capacity utilization
reports that provide a comparative
measure of public safety network
services utilization against the
documented, engineered, installed, and
in-service Radio Access (RA) and
terrestrial network capacity.’’ 361
169. Discussion. The Commission
tentatively concludes, consistent with
the Commission’s tentative
determinations elsewhere regarding the
appropriate operational role and
responsibilities of the Public Safety
Broadband Licensee, that the D Block
licensee(s) should assume exclusive
responsibility for all traditional network
service provider operations, including
network monitoring and management,
operational support and billing systems,
and customer care, in connection with
services provided to public safety users.
170. As the Commission noted in the
Second FNPRM, ‘‘primary operational
control of the network is inherently the
responsibility of the D Block licensee
(and its related entities), which would
in turn generally provide the operations
and services that enable the Public
Safety Broadband Licensee to ensure
public safety requirements are met.’’ 362
The Commission agrees with AT&T that
the commercial partner will likely have
the experience, resources, and
personnel to best perform these
358 PSST
Comments at 12.
Comments at 12.
360 PSST Comments at 12.
361 PSST Reply Comments, Attach. A1 at 6.
362 Second FNPRM, 23 FCC Rcd at 8091–92 para.
124.
359 PSST
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functions, and that without assurance of
day-to-day operational control,
commercial partners might be deterred
from seeking D Block licenses.363
Providing that the D Block licensee(s)
will assume exclusive responsibility for
traditional operations should also avoid
any duplication of efforts or
responsibilities between the D Block
licensee(s) and the Public Safety
Broadband Licensee, improving the
efficiency of network operation, and
ensuring that the Public Safety
Broadband Licensee will be focused on
meeting its own exclusive functions and
responsibilities.
171. In addition, while the
Commission provides that only the D
Block licensee(s) may directly manage
the network or provide network
services, the Commission observes that
the Public Safety Broadband Licensee
will nonetheless retain control over use
of the Public Safety Broadband
spectrum, pursuant to its license
obligations and the spectrum manager
leasing arrangement(s) for D Block
secondary use lasting for the full term
of the license(s),364 and will have
significant input into the provision of
such services through the establishment
of priority access, service levels and
related requirements within the NSA
process, approving public safety
applications and end user devices, and
ongoing monitoring of system
performance made possible through the
monthly reporting requirement the
Commission proposes to mandate on the
D Block licensee(s) showing network
usage. As a consequence, reserving all
traditional network provider functions
to the D Block licensee(s) should not
prevent the Public Safety Broadband
Licensee from maintaining a direct
relationship with public safety users or
from carrying out its specific assigned
responsibilities.
172. As noted above, the Commission
tentatively decides to impose specific
obligations on the D Block licensee(s) to
provide regular monthly reports on
network usage to the Public Safety
Broadband Licensee as proposed by the
PSST. This network reporting
requirement will be in addition to the
existing requirement that, following the
execution of the NSA, the D Block
licensee(s) and Public Safety Broadband
Licensee must jointly provide quarterly
reports including detailed information
on the areas where broadband service is
deployed, how the specific
requirements of public safety are being
met, audited financial statements, and
363 AT&T
Comments at 17.
Second Report and Order, 22 FCC Rcd at
15437–38, paras. 414–17. See also 47 CFR 90.1407.
364 See
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other aspects of public safety use of the
network.365 The Commission anticipates
that such reporting will enable the
Public Safety Broadband Licensee to
carry out its responsibility to monitor
system performance and provide
adequate oversight of the D Block
licensee’s operations.
173. National Committee of D Block
Licensees. The Commission notes U.S.
Cellular’s proposal that, if the D Block
is licensed on a regional basis to
multiple entities, there should be a
National Committee of Licensees, which
would: (1) ‘‘Serve as a single point of
contact for FCC, PSST and public safety
agencies with licensees on national
issues;’’ (2) ‘‘develop licensees’
recommendations for any FCC rule
changes’’; (3) ‘‘negotiate changes in
national NSA with PSST;’’ (4) ‘‘arrange
support services for operations requiring
inter-carrier coordination;’’ and (5)
‘‘work in conjunction with existing
standards bodies and clearing
houses.’’ 366 The PSST also has similarly
proposed that if the Commission adopts
regional licensing, it should, among
other things, ‘‘adopt a legally binding
governance structure to facilitate
interactions among multiple D Block
licensees and PSST, and to ensure
interoperability and nationwide
roaming.’’ 367 The Commission seeks
comment on these proposals, and more
generally on whether, in the event the
Commission licenses the D Block on a
regional basis, the Commission should
require the regional licensees to form a
formal national governance structure,
and if so, what role and responsibilities
this national entity should have in the
establishment of the NSA(s), the
construction and operation of the
regional networks, or any other matter.
174. Wholesale Service. With regard
to the provision of wholesale service,
the Commission has proposed
elsewhere in this Third FNPRM to
continue to permit the D Block
licensee(s) the flexibility to provide
either retail or wholesale service
commercially. With regard to services to
public safety entities, however, the
Commission tentatively concludes that
such flexibility must be limited to some
extent. As the PSST notes, ‘‘[u]nder a
365 See Second Report and Order, 22 FCC Rcd at
15471 para. 530.
366 Letter from Warren G. Lavey, on behalf of
United States Cellular Corp., to Marlene H. Dortsch,
Secretary, FCC, WT Docket No. 06–150, filed Sept.
2, 2008 (US Cellular Sept. 2, 2008 Ex Parte),
Attach., ‘‘Making the Partnership Work: Solutions
for the 700 MHz D Block’’, at 7.
367 Letter from Chief Harlin R. McEwen,
Chairman, Public Safety Spectrum Trust
Corporation, to Marlene H. Dortsch, Secretary, FCC,
WT Docket No. 06–150, filed Aug. 29, 2008 (PSST
Aug. 29, 2008 Ex Parte), at 1.
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wholesale-only approach, it is not at all
clear who would deliver the necessary
services to public safety agencies
* * *.’’ 368 To address this concern, the
Commission tentatively concludes that
if the D Block licensee chooses to adopt
a wholesale-only model with respect to
the D Block spectrum, it must still
ensure, though arrangements such as the
creation of a subsidiary or by
contracting with a third party, that retail
service will be provided to public safety
entities that complies with the
Commission’s regulatory
requirements.369 The Commission
proposes to require this arrangement to
be included in the NSA, and that,
whatever the arrangement, the D Block
licensee should be responsible for
ensuring that service to public safety
meets applicable requirements. The
Commission notes that the current rules
require the D Block licensee to create
separate entities to hold the license and
network assets, respectively, and a third
entity to construct and operate the
network, and further require that these
separate entities must be special
purpose, bankruptcy remote entities, as
defined in the rules, to provide the
network with a certain degree of
protection from being drawn into a
bankruptcy proceeding. The
Commission seeks comment on whether
certain arrangements might enable a D
Block licensee to place important assets
outside the protection from bankruptcy
that the Commission intended through
this structure.
5. Role and Responsibilities of the
Public Safety Broadband Licensee in the
Use of the Network
175. Background. In the Second
Report and Order the Commission
charged the Public Safety Broadband
Licensee with representing the interests
of the public safety community to
ensure that the shared interoperable
broadband network meets their needs.
Specifically, the Commission assigned
the following responsibilities to the
Public Safety Broadband Licensee
concerning its partnership with the D
Block licensee:
• General administration of access to
the national public safety broadband
network by individual public safety
entities, including assessment of usage
fees to recoup its expenses and related
frequency coordination duties.
368 PSST
Comments at 12.
relationship between a D Block auction
winner and the retail-level operating company will
be subject to all of the Commission’s rules,
including, but not limited to, provisions regarding
leasing in Subparts Q and X of Part 1 of the
Commission’s rules.
369 The
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• Regular interaction with and
promotion of the needs of the public
safety entities that would utilize the
national public safety broadband
network, within the technical and
operational confines of the NSA.
• Use of its national level of
representation of the public safety
community to interface with equipment
vendors on its own or in partnership
with the D Block licensee, as
appropriate, to achieve and pass on the
benefits of economies of scale
concerning network and subscriber
equipment and applications.
• Sole authority, which cannot be
waived in the NSA, to approve, in
consultation with the D Block licensee,
equipment and applications for use by
public safety entities on the public
safety broadband network.
• Responsibility to facilitate
negotiations between the winning
bidder of the D Block license and local
and state entities to build out local and
state-owned lands.370
176. The Commission also identified
several other of the Public Safety
Broadband Licensee’s responsibilities,
which included:
• Coordination of stations operating
on public safety broadband spectrum
with public safety narrowband stations,
including management of the internal
public safety guard band.
• Oversight and implementation of
the relocation of narrowband public
safety operations in channels 63 and 68,
and the upper 1 megahertz of channels
64 and 69.
• Exercise of sole discretion, pursuant
to Section 2.103 of the Commission’s
rules, whether to permit Federal public
safety agency use of the public safety
broadband spectrum, with any such use
subject to the terms and conditions of
the NSA.
• Responsibility for reviewing
requests for wideband waivers and
including necessary conditions or
limitations consistent with the
deployment and construction of the
national public safety broadband
network.371
177. In developing these
responsibilities, the Commission
afforded the Public Safety Broadband
Licensee flexibility in overseeing the
construction and use of the nationwide
broadband public safety network, while
seeking ‘‘to balance that discretion with
the concurrent and separate
responsibilities’’ of the D Block
licensee.372 To that end, the
Commission indicated elsewhere that
the interoperable shared broadband
network must incorporate, among other
requirements, ‘‘[o]perational control of
the network by the Public Safety
Broadband Licensee to the extent
necessary to ensure public safety
requirements are met.’’ 373
178. In the Second FNPRM, the
Commission sought comment on
whether the Commission should clarify
that the Public Safety Broadband
Licensee may not assume any additional
responsibilities other than those
specified by the Commission in this
proceeding.374 The Commission asked
generally whether the Commission
should clarify, revise, or eliminate any
of the specific responsibilities listed
above that the Public Safety Broadband
Licensee must assume.375 The
Commission also sought comment in
particular on whether to clarify or revise
the division of responsibility between
the Public Safety Broadband Licensee
and the D Block licensee regarding
direct interaction with individual public
safety entities in the establishment of
service to such entities, the provision of
service, customer care, service billing,
or other matters.376
179. In addressing these questions,
the Commission asked commenters to
consider the unique role served by the
Public Safety Broadband Licensee by
virtue of holding the single nationwide
public safety license, while not being an
actual user of the network.377 The
Commission observed that the Public
Safety Broadband Licensee would in
many respects function much as
regional planning committees presently
do in the 700 MHz and 800 MHz bands,
yet with a nationwide scope.378 The
Commission noted, for example, that
like regional planning committees, the
Public Safety Broadband Licensee
would administer access to the
spectrum, coordinate spectrum use,
interact with and promote the needs of
individual public safety agencies, and
ensure conformance with applicable
technical and operational rules.379 The
Commission further observed that the
Public Safety Broadband Licensee has
distinct abilities, in that it may assess
usage fees to recoup its costs, can use its
national level of representation to pass
on the benefits of economies of scale for
subscriber equipment and applications,
and holds sole authority to approve, in
consultation with the D Block licensee,
373 Id.
at 15434 para. 405.
FNPRM, 23 FCC Rcd at 8090, para.
374 Second
121.
375 Id.
376 Second
370 Second
Report and Order at 15427 para. 383.
371 Id.
372 Id.
at 15426 para. 383.
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FNPRM at para. 122.
FNPRM at para. 122.
378 Second FNPRM at para. 122.
379 Second FNPRM at para. 122.
377 Second
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57785
equipment and applications for public
safety users, and to permit Federal
public safety agency use.380
180. In light of these similarities and
differences, the Commission asked
whether there are certain elements of
the existing regional planning
committee functions that the
Commission should adopt for the Public
Safety Broadband Licensee, and
whether for those functions distinct
from regional planning committees, the
Commission should adopt specific rules
governing how the Public Safety
Broadband Licensee would carry those
out.381 To the extent the Public Safety
Broadband Licensee also serves a role as
a partner with the D Block licensee
(such as facilitating negotiations
between the D Block licensee and state
and local agencies for local build-outs),
the Commission asked how, if at all, the
Public Safety Broadband Licensee’s role
as one half of the 700 MHz Public/
Private Partnership should impact how
the Commission modify or clarify the
respective responsibilities of the D
Block licensee and the Public Safety
Broadband Licensee moving forward.382
181. The Commission also observed
in the Second FNPRM that more specific
limits may be required regarding the
Public Safety Broadband Licensee’s
discretion to carry out its partner-related
responsibilities.383 The Commission
noted, for example, that the shared
wireless broadband network elements
adopted in the Second Report and Order
required that the network infrastructure
incorporate operational control of the
network by the Public Safety Broadband
Licensee ‘‘to the extent necessary’’ to
ensure public safety requirements are
met.384 The Commission reiterated that
the underlying premise of the 700 MHz
Public/Private Partnership was that the
D Block licensee would be responsible
for construction and operation of the
broadband network.385 The Commission
observed that allowing duplication of
some or all of these operational
functions by the Public Safety
Broadband Licensee could render it a
reseller of services, thus injecting an
inappropriate ‘‘business’’ or ‘‘profit’’
motive into the Public Safety Broadband
Licensee structure, and detracting it
from the intended primary focus of the
Public Safety Broadband Licensee.386
Accordingly, the Commission sought
comment on whether to clarify that
380 Second
FNPRM at para. 123.
FNPRM at para. 123
382 Second FNPRM at para. 124.
383 Second FNPRM at para. 124.
384 Second FNPRM at para. 124.
385 Second FNPRM at para. 124.
386 Second FNPRM at para. 124.
381 Second
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none of the responsibilities and
obligations of the Public Safety
Broadband Licensee, either as
previously adopted or as possibly
revised, would permit the Public Safety
Broadband Licensee to assume or
duplicate any of the network
monitoring, operations, customer care,
or related functions that are inherent in
the D Block licensee’s responsibilities to
construct and operate the shared
network infrastructure.387
182. The Commission further sought
comment on whether to expressly
provide that neither the Public Safety
Broadband Licensee nor any of its
advisors, agents, or service providers
may assume responsibilities akin to a
mobile virtual network operator
(‘‘MVNO’’) 388 because such a role
would be contrary to the respective
roles and responsibilities of the D Block
licensee and Public Safety Broadband
Licensee regarding construction,
management, operations, and use of the
shared wireless broadband network,
might unnecessarily add to the costs of
the 700 MHz Public/Private Partnership,
and might otherwise permit ‘‘for profit’’
incentives to influence the operations of
the Public Safety Broadband
Licensee.389
183. Comments. The PSST generally
argued that it must be an ‘‘equal
partner’’ in the 700 MHz Public/Private
Partnership, and that ‘‘[b]ecause the
FCC has made the PSST responsible for
the public safety user experience on the
SWBN [shared wireless broadband
network], it also must provide the PSST
with a mechanism that permits the
PSST to fulfill that responsibility on an
ongoing basis after negotiating the
NSA.’’ 390 The PSST explained that
while it ‘‘accepts the FCC’s view that
the PSST should not have [ ] an active
role in the ‘business’ of managing the
public safety user experience on the
SWBN,’’ it ‘‘does not agree that the D
Block licensee should have sole control
over all of the traditional network
service provider operations, including
those associated with the spectrum for
which the PSST is the licensee.’’391 The
PSST further argued that ‘‘[c]eding sole
control over these important functions
to the D Block licensee would seriously
387 Second
FNPRM at para. 124.
mobile virtual network operator is a nonfacility-based mobile service provider that resells
service to the public for profit. See Implementation
of Section 6002(B) of the Omnibus Budget
Reconciliation Act of 1993, WT Docket No. 05–71,
Tenth Report, 20 FCC Rcd 15908, 15920 para. 27
(2005).
389 Second FNPRM, 23 FCC Rcd at 8092, at para.
125.
390 PSST Comments at 10.
391 PSST Comments at 11–12 (citing 47 CFR
1.9010, 1.9020 and 90.1440).
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impair, not ‘better enable,’ the PSBL’s
ability to ‘administer access to the
national public safety broadband
network by individual public safety
entities, coordinate frequency usage,
assess usage fees, and exercise its sole
authority to approve equipment and
applications for use by public safety
entities.’ ’’ 392 The PSST asserted that
‘‘[i]t is clear to the PSST that for the
PSST to ‘administer’ network access it
will need some form of direct
relationship with public safety users on
the network.’’393
184. The PSST argued that ‘‘it can
fulfill its responsibilities if it is
considered to operate in a manner
comparable to a ‘cooperative’
licensee.’’ 394 According to the PSST,
under this model, the ‘‘cooperative
status permits a single entity to hold the
authorization for spectrum that will be
utilized by multiple users on a nonprofit, cost-shared basis when each user
is independently eligible to operate on
the spectrum.’’ 395 Additionally,
according to the PSST, ‘‘[t]he
cooperative approach should provide
the PSST with a direct enforcement
right to obtain redress on behalf of
public safety users as well as a direct
right to ensure that the highest levels of
SWBN priority access are only used for
public safety authorized purposes.’’ 396
185. The PSST asserted that ‘‘the FCC
already has determined that the PSST
must have operational control of the
SWBN to the extent required to ensure
that public safety requirements are met,
a responsibility that is critical during
incident management.’’ 397 The PSST
acknowledged that ‘‘this can be
accomplished without the PSST
establishing Network Operating Centers
(NOCs) or other network elements that
could be considered parallel to or
duplicative of those maintained by the
D Block licensee,’’ 398 but added that
‘‘the PSST’s right to an appropriate level
of control dictates that it must have the
exclusive right to manage the
assignment of the highest priority levels
on the SWBN.’’ 399
392 PSST Comments at 12 (citing Second FNPRM
at para. 115; Appendix, Section II).
393 PSST Comments at 12.
394 PSST Comments at 14 (citing 47 CFR 90.179).
395 PSST Comments at 14.
396 PSST Comments at 14.
397 PSST Comments at 15.
398 PSST Comments at 15.
399 PSST Comments at 16. The PSST further
explained that while ‘‘overall control of these
priority levels must reside with the PSST, [ ]
individual priority assignments may be carried out,
as they are today, at more local levels.’’ Id. The
PSST also asserted that it would need to play an
‘‘active role’’ in ‘‘[e]stablishing standards for the
construction of a SWBN with specific features and
services for the benefit of public safety,’’ and
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186. The PSST also argued that it
‘‘must have an independent ability to
monitor the D Block licensee’s
compliance with the FCC rules and with
the terms of the NSA as they relate to
public safety operations on the SWBN,’’
which it further argued would involve
monitoring ‘‘the D Block operator’s
performance on a real-time basis so that
problems are identified and corrected,
preferably before they impact public
safety communications rather than after
the fact.’’ 400 The PSST clarified that
‘‘[a]lthough the D Block licensee will
always have operational control of the
SWBN, the PSST should have sufficient
access to and certain rights regarding
the D Block licensee’s NOC and data
centers to carry out the PSST’s
obligations, including implementing
priority access for public safety users, if
the PSST is not to have its own
facilities.’’ 401 According to the PSST,
‘‘[n]either the PSST nor the emergency
responders who elect to join the
network should have to rely entirely on
self-policing and self-reporting by the D
Block licensee to confirm that public
safety needs are being met.’’ 402 The
PSST further asserted that ‘‘[i]t also is
important that the PSST, as well as the
D Block licensee, play a direct role in
promoting widespread public safety
usage of the SWBN.’’ 403
187. The PSST included proposed
regulations with its Reply Comments
that would implement many of its
positions described above.404 For
example, under its proposed regulations
defining the ‘‘Shared Wireless
Broadband Network,’’ the network
would ‘‘[p]rovide for operational control
of the network by the Public Safety
Broadband Licensee, on terms and
conditions agreed to by the Public
Safety Broadband Licensee and the
Upper 700 MHz D Block licensee, to the
extent necessary to ensure that Priority
Public Safety Users’ expectations are
met.’’ 405 Under the proposed
regulations, these terms and conditions
‘‘[n]egotiating arrangements for the purchase of
equipment from vendors (under master agreements
for the benefit of public safety users), and
renegotiating these agreements on an ongoing basis
to reflect the latest market developments.’’ Id. at 9–
10.
400 PSST Comments at 16. The PSST also
contended that it ‘‘will need to be involved in and
able to enforce the contracts between public safety
users and the D Block licensee in order to ensure
contract compliance and obtain redress on behalf of
public safety users, without being reduced to an
ineffectual committee preparing reports on NSA
compliance.’’ Id. at 10.
401 PSST Comments at 16 n.30.
402 PSST Comments at 16.
403 PSST Comments at 17.
404 See PSST Reply Comments, Attachment A.
405 See PSST Reply Comments, Attachment A, at
9.
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would include the ability of the Public
Safety Broadband Licensee and public
safety users to ‘‘[h]ave real-time
monitoring and visibility into the
network that is integrated with
performance, SLA, and KPI reports as
defined and specified in the NSA’’ as
well as ‘‘real-time visibility into Shared
Wireless Broadband Network service
quality and network status relevant to
the local agency or jurisdiction,
including the ability for local Priority
Public Safety Users to have real-time
network status, site status, and alarm
visibility for their geographic area.’’ 406
188. APCO argued that it would be
inappropriate for the PSBL to act as a
MVNO because such action ‘‘would add
duplication and costs that could become
a burden for both the PSBL and, more
importantly, end users.’’ 407 APCO
observed that the MVNO model ‘‘also
imposes responsibilities on the PSBL for
which it is likely to be ill-equipped,’’
and that ‘‘[t]o accept such a
responsibility, the PSBL would need to
rely heavily upon commercial
contractors, and somehow provide
sufficient oversight to ensure that the
contractors are serving public safety’s
interests.’’ 408 APCO further observed
that ‘‘[b]uilding the required internal
management and operational capability
would also involve very substantial
capital expenditures,’’ for which the
PSBL ‘‘would need to rely upon either
debt extended by its contractors [] or
substantial payment from the D Block
licensee pursuant to the NSA (which
would likely discourage bidders once
again).’’ 409
189. APCO argued, however, that the
‘‘PSBL does need to have an active role
in the operation of the broadband
network to ensure that it meets public
safety’s requirements.’’ 410 APCO stated
that ‘‘there needs to be a mechanism to
oversee priority access and proper
incident command and control for the
capacity represented by the 10 MHz
licensed to the PSBL.’’ 411 More
specifically, APCO argued that ‘‘the
PSBL needs to move towards a
management structure that monitors D
Block licensee contract performance and
406 Id. The proposed regulations further indicate
that ‘‘[o]perational control, as agreed to between the
Upper 700 MHz D Block licensee and the Public
Safety Broadband Licensee in the NSA, shall
include * * * [t]he authorities and permissions for
Public Safety Broadband Licensee-trained incident
management personnel to have real-time access to
the Upper 700 MHz D Block licensee’s primary and
secondary Network Operations Centers (NOCs).’’ Id.
at 10.
407 APCO Comments at 34.
408 APCO Comments at 34.
409 APCO Comments at 34–35.
410 APCO Comments at 35.
411 APCO Comments at 35.
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service relations, without duplicating
the D Block licensee’s core function or
neglecting the agencies and citizens the
PSBL is charged to protect.’’ 412 To
achieve this objective, APCO proposed
a specific list of tasks and services that
it contended the PSBL needs the ability
to perform.413
190. AT&T urged the Commission to
‘‘definitively declare that commercial
partners will have operational control
over the entire joint network, subject
only to specific PSBL operational
authority that the Commission clearly
defines prior to the RFP process or a
reauction.’’ 414 AT&T contended that
‘‘[c]ommercial partners require day-today operational control over the entire
network to ensure that commercial and
public safety service offerings meet the
high standards expected by commercial
and public safety end users on a daily
basis,’’ adding that ‘‘commercial
partners are likely also in the best
position to perform this function, given
their experience, expertise, and
personnel and financial resources.’’ 415
AT&T further contended that ‘‘[w]ithout
assurance of commercial control over
the network’s operations, AT&T
questions whether any interested
commercial parties will participate in a
RFP process or reauction.’’ 416 To that
end, AT&T requested clarification
regarding the Commission’s statement
in the Second Report and Order that the
Public Safety Broadband Licensee
would have ‘‘operational control of the
network to the extent necessary to
ensure public safety requirements are
met.’’ 417 More specifically, AT&T
argued that ‘‘[i]n order to assess the
commercial viability of the Public/
Private Partnership, potential
commercial participants need the
Commission to eliminate [any]
ambiguity [on this issue] and to provide
a concise definition of ‘‘operational
control.’’ 418
191. AT&T further requested that the
Commission clarify that ‘‘the PSBL has
a responsibility to set priority levels and
provision priority users on the public
safety network,’’ for which AT&T
recommends following the model
established by [the Department of
Homeland Security’s National
Communications System] in the
provisioning of [Wireless Priority
412 APCO
Comments at 35.
Comments at 35–37.
414 AT&T Comments at 16. See also Reply
Comments of AT&T at 17–18.
415 AT&T Comments at 16–17.
416 AT&T Comments at 17.
417 AT&T Comments at 17 (citing Second Report
and Order at para. 405).
418 AT&T Comments at 17.
413 APCO
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57787
Service].’’ 419 In addition, AT&T
asserted that ‘‘decisions whether a
certain public safety device or
application should be permitted on the
public/private network should rest
primarily with the PSBL.’’ 420 AT&T
indicated that it ‘‘generally agrees’’ with
the list of potential PSBL
responsibilities proposed by APCO.421
AT&T opposed the notion of allowing
the Public Safety Broadband Licensee to
act as an MVNO, arguing that allowing
‘‘the PSBL or its advisors operate as an
MVNO or otherwise profiteer from the
Public/Private Partnership will likely
raise the costs of services for public
safety users as well as discourage
commercial participation in the Public/
Private Partnership.’’ 422
192. Big Bend Telephone Company
argued that the Commission ‘‘should not
permit the Public Safety Broadband
Licensee, or any of its advisors, agents,
or service providers to provide
commercial services as a ‘mobile virtual
network operator.’ ’’423 Big Bend further
argued that permitting such action
‘‘would permit ‘for profit’ incentives to
influence the operations of the Public
Safety Broadband Licensee,’’ which Big
Bend argued would ‘‘prove detrimental
to the viability of smaller and rural
wireless carriers.’’ 424 Big Bend also
contended that smaller and rural
wireless carriers ‘‘should have a
reasonable expectation that the FCC’s
rules will not permit a heavily
subsidized competitor—one that did not
have to pay for its spectrum or network
construction, and that enjoys preferred
regulatory status—to compete in the
market for commercial wireless
services.’’ 425 A number of other rural
telecommunications carriers filed
essentially identical comments.426
193. Ericsson asserted that ‘‘[a]
substantial portion of that network (at a
minimum, the radio access network,
and in all likelihood, other network
components as well) will be run, day-today, by the D Block licensee.’’ Ericsson
envisioned that the ‘‘PSBL will need to
interact regularly with the D Block
licensee to ensure that the needs of the
public safety organizations using the
national public safety broadband
network are satisfied, within the
419 AT&T
Comments at 17–18.
Comments at 18.
421 AT&T Reply Comments at 18.
422 AT&T Comments at 21–22. See also AT&T
Reply Comments at 16.
423 Big Bend Comments at 3.
424 Big Bend Comments at 3.
425 Big Bend Comments at 3.
426 See ACT Comments at 2–3; Smithville
Comments at 2–3; PVTC Comments at 3; Van Buren
Comments at 2–3; Wiggins Comments at 4; CTC
Comments at 3; Ponderosa Comments at 2–3.
420 AT&T
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technical and operational confines of
the NSA and FCC rules.’’ 427 To that
end, Ericsson argued that ‘‘the D Block
licensee would need to provide the
PSBL with any reports needed to
evaluate the effectiveness and proper
operation of the priority access and
preemption mechanisms.’’ 428
Additionally, Ericsson argued that ‘‘the
PSBL should be responsible for taking a
leadership role in negotiations
concerning the siting of facilities on
lands owned or controlled by state and
local governments, and regarding siting
of facilities in cases where state and
local government oppose the site.’’ 429
194. Nextwave asserted that ‘‘the
PSST should be tasked with organizing,
prioritizing, and addressing accordingly
the varying broadband needs of the
diverse public safety community it
serves.’’ 430 In particular, Nextwave
recommended that ‘‘the FCC leave to the
local and regional jurisdictions
decisions with respect to standardsbased technologies to suit their specific
needs, but direct the PSST to provide
guidance on coordination of spectrum
usage, minimum network performance
requirements, permissible standardsbased technologies with which the
networks must be built to comply, and
end-to-end interoperability.’’ 431
Furthermore, Nextwave suggested that
‘‘the FCC require the PSST, as licensee
of the public safety broadband
spectrum, to create and provide an
Interoperability Plan to public safety
entities for their reference in building
regional networks.’’ 432
195. Council Tree contended that ‘‘the
Public Safety Broadband Licensee
should be required to operate as an
accountable MVNO with respect to
public safety users.’’ 433 Council Tree
argued that such action is necessary
because ‘‘the MVNO will serve as the
appropriate vehicle through which
public safety users may commit to
certain minimum volume purchase
requirements,’’ 434 and ‘‘the MVNO
structure provides a substantial service
to the D Block licensee by taking on the
administrative responsibility associated
with meeting the unique service needs
of public safety users.’’ 435 Additionally,
Council Tree argued that ‘‘[s]hifting
responsibilities to an MVNO directed by
the Public Safety Broadband Licensee
also simplifies key elements in the NSA
jlentini on PROD1PC65 with PROPOSALS2
427 Ericsson
Comments at 30.
Comments at 30.
429 Ericsson Comments at 30.
430 Nextwave Reply Comments at 8.
431 Nextwave Reply Comments at 8–9.
432 Nextwave Reply Comments at 9.
433 Council Tree Comments at 21.
434 Council Tree Comments at 21.
435 Council Tree Comments at 22.
428 Ericsson
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and should facilitate negotiation of the
agreement.’’ 436
196. Discussion. As an initial matter,
the Commission does not propose any
changes to the responsibilities of the
Public Safety Broadband Licensee
summarized above that were established
by the Second Report and Order. Thus,
the Public Safety Broadband Licensee
will continue to be responsible for such
activities as administration of access to
the nationwide public safety broadband
network by public safety entities,
representation of the public safety
community in negotiating the NSA with
the D Block licensee(s), interaction with
equipment vendors and approval of
equipment and applications, and
administration of the narrowband
relocation process.
197. However, the Commission
tentatively concludes that further
clarification as to the responsibilities
and obligations of the Public Safety
Broadband Licensee would help define
the overall 700 MHz Public/Private
Partnership model and provide greater
certainty to both the Public Safety
Broadband Licensee and potential
bidders for the D Block license(s)
regarding their respective roles. The
Commission begins with the premise
that the responsibilities and obligations
of the Public Safety Broadband Licensee
do not include the Public Safety
Broadband Licensee assuming or
duplicating any of the day-to-day
network monitoring, operations,
customer care, or related functions that
are inherent in the D Block licensee’s
responsibilities to construct and operate
the shared network infrastructure. In the
context of the 700 MHz Public/Private
Partnership model, the Commission
does not envision that the Public Safety
Broadband Licensee would operate as
an MVNO or that it would exercise
actual day-to-day operational control
over the shared broadband network.
While the Public Safety Broadband
Licensee is charged with administering
access to the shared broadband network
by public safety users, the Commission’s
view it as carrying out these functions
through the establishment of priority
access, service levels, and related
requirements within the NSA process,
as opposed to providing any form of
ongoing day-to-day billing or customer
care functions to public safety entities
desiring to access the shared broadband
network.
198. The Commission agrees with
commenters who observed that allowing
the Public Safety Broadband Licensee to
duplicate some or all of the operational
functions for which the D Block
436 Council
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Tree Comments at 22.
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licensee, as the service provider,
inherently is responsible, would
effectively render the Public Safety
Broadband Licensee a reseller of
services, which could inject an
inappropriate and impermissible
‘‘business’’ or ‘‘profit’’ motive into the
Public Safety Broadband Licensee’s
structure.437 Such duplication of
functions also would unnecessarily
increase the Public Safety Broadband
Licensee’s costs.
199. At the same time, the
Commission agrees with commenters
who observed that the Public Safety
Broadband Licensee should have the
ability to monitor the services provided
by the D Block licensee(s) to ensure that
priority access and other operational
requirements (including the
establishment of service levels and the
authentication and authorization of
public safety users) are being provided
in accordance with the NSA’s terms,
and should be empowered to work with
the D Block licensee to promptly correct
any deficiencies. The Commission
expects that the Public Safety
Broadband Licensee will be able to
perform this function through review of
monthly usage reports supplied by the
D Block licensee(s), and that such
monitoring will enable the Public Safety
Broadband Licensee to work with the D
Block licensee(s) to develop improved
ways to meet the evolving usage needs
of the public safety community. The
Commission also believes that the
Public Safety Broadband Licensee can
effectively carry out its monitoring role
without requiring the D Block licensee
to support real-time monitoring by the
PSBL or to provide the PSBL with
access rights to the D Block licensee’s
NOC and/or data centers.
200. The Commission believes that
the role of the Public Safety Broadband
Licensee, as discussed in the Second
Report and Order and as further
clarified above, is fully consistent with
the requirement under Section 310(d) of
the Communications Act that it exercise
de facto control over use of the public
safety broadband spectrum. Although
the Public Safety Broadband Licensee
will not exercise day-to-day operational
control of the shared broadband
network, the Commission has
previously stated that operational
control of facilities is not a statutory
requirement to establish control, so long
as the licensee retains ultimate control
over use of the licensed spectrum.438 In
437 See, e.g., Big Bend Telephone Company
Comments at 3.
438 See generally Promoting Efficient Use of
Spectrum Through the Elimination of Barriers to
the Development of Secondary Markets, WT Docket
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this case, the Public Safety Broadband
Licensee will exercise control over use
of the public spectrum by defining and
administering the terms of access and
use of the spectrum, maintaining an
active monitoring and oversight role
based on the monthly reports provided
by the D Block licensee, and exercising
its other responsibilities enumerated
above and in the Second Report and
Order. The Public Safety Broadband
Licensee will also have the authority to
act on information provided in the D
Block licensee’s reports, if necessary, by
bringing a complaint or petition for
declaratory ruling to the Commission.439
This authority will enable the Public
Safety Broadband Licensee to carry out
its core responsibility to ensure
compliance with Commission rules and
policies by users of the public safety
broadband spectrum.
201. Accordingly, the Commission
tentatively concludes that the
Commission should clarify the Public
Safety Broadband Licensee’s
responsibilities with respect to ‘‘general
administrator of access,’’ as well as the
requirement (codified in existing rule
sections 27.1305(h) and 90.1405(h)) that
the network incorporate ‘‘operational
control’’ as follows. The Commission
proposes that the D Block licensee(s)
build into the shared broadband
network infrastructure a capability to
provide monthly usage reports covering
network capacity and priority access so
that the Public Safety Broadband
Licensee can monitor usage and provide
appropriate feedback to the D Block
licensee(s) on operational elements of
the network. The Commission further
proposes that the Public Safety
Broadband Licensee utilize these reports
to carry out its role in administering
access to the shared broadband network
in consultation with local, regional and
state public safety agencies. The Public
Safety Broadband Licensee also may
administer access in terms of
establishing access priorities and service
levels, authenticating and authorizing
public safety users, approving
equipment and applications for public
safety end users of the network, and
interacting with the public safety
community to facilitate an
understanding of the opportunities
made possible by subscribing to the
interoperable shared broadband network
and the procedures for doing so.
00–230, Report and Order and Further Notice of
Proposed Rulemaking, 18 FCC Rcd 20604 (2003)
(concluding that operational control of facilities
was not a prerequisite for establishing that a
licensee retained de facto control under Section
310(d) in the spectrum leasing context).
439 See Second Report and Order, 22 FCC Rcd at
15470, para. 528.
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6. Post-Auction Process for Establishing
a Network Sharing Agreement
202. Background. In the Second
FNPRM, the Commission sought
comment on whether and how to
modify the post-auction process,
including provisions governing
negotiations between a winning D Block
bidder and the Public Safety Broadband
Licensee for a Network Sharing
Agreement. The Commission sought
comment on whether modifications to
the process would create greater
incentives for the D Block winner and
the PSBL to negotiate the terms of the
NSA in good faith, while reasonably
protecting their respective interests. In
particular, comment was sought
regarding what consequences following
failure to negotiate an NSA would
provide the best set of incentives for
effective negotiation. For example, such
consequences could include offering a D
Block license to the next highest bidder,
as well as possibly requiring the initial
D Block winner to cover the PSBL’s
costs associated with the unsuccessful
negotiations; or conducting a new
auction, with or without the winner of
the initial auction; or conducting a new
auction with licenses no longer subject
to the Public Private Partnership, with
or without the winner of the initial
auction and/or with parties previously
excluded from the initial auction; and/
or subjecting the D Block winning
bidder to default payments, either
dependent on or irrespective of its good
faith in conducting the negotiations.
203. Discussion. In this section, the
Commission tentatively concludes that
the public interest in achieving a
nationwide interoperable public safety
broadband network following bidding
for alternative D Block licenses will be
served best by making no provision at
this time for lifting the Public Private
Partnership conditions following such
bidding. The Commission further
tentatively concludes that the
Commission should adopt a rule
providing that if a winning bidder
should for any reason not be assigned a
license following an auction of D Block
licenses subject to the Public Private
Partnership Conditions, including due
to a failure to negotiate an NSA, the
Commission shall offer to the other
bidder(s) with the next highest bid(s) on
the license(s) any license that was not
assigned. The Commission directs the
Wireless Telecommunications Bureau to
specify the circumstances in which the
Commission may make such an offer in
the context of the final procedures
adopted for any auction of D Block
licenses.
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204. The Commission’s separate
tentative conclusion to offer multiple
regional licenses for the D Block, in
addition to a nationwide license,
presents the possibility that separate
NSAs may apply to separate licenses.
The Commission tentatively concludes
that the Commission should review and,
if in the public interest, may accept
NSAs for some licenses, even if
acceptable NSAs are not submitted with
respect to all licenses.
205. The Commission tentatively
concludes that the Commission should
continue to provide for Commission
resolution of any impasse between the
parties negotiating any NSA. The
Commission further tentatively
concludes that a winning D Block
bidder shall not be subject to a default
payment in the event there ultimately is
no agreement on the terms of the NSA,
provided that it accepts any
Commission resolution of an impasse in
the process of negotiating the NSA.
206. The unique requirement for the
D Block that winning bidders to
negotiate the terms of an NSA with the
PSBL following bidding for the licenses
but before being granted the license may
produce circumstances not
contemplated by the Commission’s
current rules for processing a winning
bidder’s license application. For
example, the Commission’s current
rules do not contemplate denial of a
winning bidder’s application without
finding the applicant is either
disqualified or in default or both.440 As
discussed herein, however, there may be
circumstances in which the Commission
will not assign the license even though
the winning D Block bidder has not
defaulted and, but for the absence of an
acceptable NSA, might otherwise be
qualified to be licensed. Accordingly,
the Commission proposes a rule specific
to the D Block setting forth post-auction
application procedures consistent with
the tentative conclusions reached in this
700 MHz Third FNPRM.
207. The Commission tentatively
concludes that the current record does
not demonstrate that any other
alternatives for determining the terms of
the NSA, either through processes
modeled on a Request for Proposal
mechanism or other proposals to
finalize the NSA prior to an auction,
will better serve the public interest than
the Commission’s initial proposal that
the winning bidder(s) in an auction to
license the D Block should negotiate the
terms of the NSA with the PSBL. The
Commission seeks comment on all the
tentative conclusions with respect to the
process for negotiating the NSA.
440 Cf.
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208. Finally, given the proposal to
offer the D Block on a regional basis,
and the other significant changes
proposed herein, the Commission seeks
comment on whether the Commission
should adopt further changes to the
process for establishing the NSA.441 For
example, the Commission seeks
comment on whether the Commission
should reduce or modify the current
negotiation reporting requirements,
which obligate the Public Safety
Broadband Licensee and the D Block
winning bidder to jointly provide
detailed reports on a monthly basis on
the progress of the negotiations.
jlentini on PROD1PC65 with PROPOSALS2
a. Action if All or Some D Block
Winning Bidders Are Not Assigned
Licenses
209. Comments. Several parties,
predominantly public safety entities,
contend that any Commission
commitment to license D Block without
the Public Private Partnership under
any subsequent circumstances might
undermine the chances for a successful
Public Private Partnership. Specifically,
APCO notes that providing for
subsequent action on the D Block in the
event there is no winning bidder after
an auction subject to the Public Private
Partnership may create incentives for
parties that prefer those other
alternatives in order to prevent licensing
pursuant to the Public Private
Partnership.442 NATOA et al. concurs,
as does PSST.443 TeleCommUnity
asserts that any such provision ‘‘may
guarantee a failed second auction’’ to
license the D Block pursuant to the
Public Private Partnership.444
Equipment manufacturer Ericson echoes
these public safety commenters.445
210. With respect to the particular
scenario in which a winning bidder is
unable to negotiate a Network Sharing
Agreement, PSST supports offering the
license to a next highest bidder.446
Ericson also advocates this approach, as
the most direct way to achieve the
benefits of the Public Private
Partnership, despite the initial winner’s
failure to negotiate an NSA.447
211. In opposition, commercial
provider MetroPCS, which advocates
abandoning the Public Private
Partnership model outright, insists that
at a minimum the Commission should
provide for an immediate subsequent
auction to license the D Block without
441 47
CFR 27.1315.
Comments at 40.
443 NATOA et al.Comments at 23, PSST
Comments at 43.
444 TeleCommUnity Comments at 15.
445 Ericsson Comments at 32.
446 PSST Comments at 42.
447 Ericsson Comments at 32.
442 APCO
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the Public Private Partnership in the
event an auction subject to the Public
Private Partnership does not succeed.448
MetroPCS advocates that the
Commission license the D Block
without the Public Private Partnership
by assigning licenses by CMA and
without accepting package, or
combinatorial, bids.449
212. Discussion. The Commission
tentatively concludes that the public
interest in achieving a nationwide
interoperable public safety broadband
network following the next auction of D
Block licenses will be served best by
making no provision for lifting the
Public Private Partnership conditions at
this time. Experience gained from an
attempt to establish a successful Public
Private Partnership following the next
auction may help chart the future course
of the D Block spectrum. Moreover,
achieving a successful nationwide
interoperable public safety broadband
network is more important than
accelerating the licensing of the D
Block.
213. A number of commenters
support offering the D Block license to
the next highest bidder following any
failure to negotiate an NSA. These
comments focus on providing a winning
D Block bidder with the best incentives
to negotiate an NSA. However, the
public interest in achieving a
nationwide interoperable public safety
broadband network as soon as possible
also will be furthered if, in the event the
Commission determines it will not
assign a license or license(s) to a
winning bidder for any reason, such as
the winning bidder’s default for failure
to make post-auction payments or
disqualification due to failure to meet
the Commission’s requirements of a D
Block licensee, the Commission offers
the relevant license(s) to the other
bidder(s) that placed the next highest
bid on the same license(s).
Consequently, the Commission
considers more generally under what
circumstances, if any, the Commission
may offer a license to another bidder
without conducting a second auction.
214. Pursuant to its current rules, the
Commission has authority to offer
licenses to bidders with the next highest
bids without re-opening bidding but
only in auctions in which a disqualified
winning bidder’s bid could not have
helped determine the winning bids on
other licenses. The Commission’s rules
currently provide discretion to make
such an offer in Commission auctions
without package bidding, while
precluding it from doing so in auctions
448 MetroPCS
449 MetroPCS
PO 00000
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Comments at 7.
Comments at 20–23.
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with package bidding.450 The
Commission’s rules make this
distinction because in an auction with
package bidding, absent the disqualified
bid(s) the next highest bid(s) of other
bidder(s) for the same license(s) or
package may not have become a
winning bid and a group of other bids
for different packages of licenses might
have become the winning bids. In that
case, the disqualified bidder’s bid
helped determine not only the winner of
the licenses subject to the disqualified
bid but also the winner of other
licenses.
215. Given the public interest at stake
in the D Block being used to deploy
rapidly a nationwide interoperable
broadband network for public safety
use, the Commission tentatively
concludes that the Commission should
have authority to offer a license to the
next highest bidder if a winning bidder
in an auction of alternative D Block
licenses subsequently defaults or is
disqualified. The offer will be for the
same license won by the initial winning
bidder, so that any offer for a PSR
license will be made to the next highest
bidder for a license using the same
technology platform, even if higher bids
were placed on a license for the same
PSR using a different technology
platform or a set of bids for alternative
licenses would have won absent the
subsequently defaulted or disqualified
bid. Moreover, the Commission
tentatively concludes that the
Commission should be able make such
an offer whether bidding on alternative
licenses was conducted with or without
package bidding. The Commission will
adopt a rule specifically for the D Block
incorporating these provisions.
216. The Commission reaches this
tentative conclusion while recognizing
that simultaneously offering alternative
licenses for the D Block has similarities
to a package bidding auction, even
absent package bidding as defined in the
Commission’s rules.451 For example, if
bidders on regional licenses collectively
outbid a bidder for the alternative
450 See 47 CFR 1.2109(c) (in the event a winning
bidder ‘‘is found unqualified to be a licensee * * *
the Commission may * * * offer [the license] to the
other highest bidders (in descending order) at their
final bids.’’) The Commission clarify here that the
imposition of liability for a default payment,
referenced in the first sentence of Section 1.2109(c),
is not a precondition to the Commission offering the
license to the next highest bidder. Rather, once a
winning bidder is found ‘‘unqualified,’’ which in
the context of the D Block would include a finding
that the winning bidder has been unable to
negotiate a Network Sharing Agreement with the
PSBL that the Commission will accept, the
Commission then ‘‘may * * * offer [the license] to
the other highest bidders,’’ regardless of whether
the winning bidder is liable for a default payment.
451 See 47 CFR 1.2103(b).
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nationwide license, it is possible that
the bid on one of those regional licenses
affected the outcome for all the other
regions by making the aggregate bid for
the regional licenses greater than the bid
for the nationwide license.452 However,
given the importance of rapidly
licensing the D Block, the Commission
tentatively concludes that, following the
simultaneous offer of alternative D
Block licenses, whether or not package
bidding is available, if the Commission
determines that it will not assign any
license(s) to an initial winning bidder,
the Commission may offer the same
license(s) to the next highest bidder,
even if a different set of licenses
covering the same population would
have had a higher aggregate bid in the
absence of the initial winning bid. The
Commission seeks comment on the
Commission’s tentative conclusion and
whether any alternative would better
serve the purposes for making such
offers.
217. The Commission tentatively
concludes that it would not be
appropriate to either require the
Commission to offer the license to the
next highest bidder or to require the
next highest bidder to accept the
license. The Commission should retain
flexibility to utilize any information
obtained from the efforts of an initial D
Block winning bidder and the PSBL to
negotiate an NSA, which might suggest
a superior course to simply offering the
license to the next highest bidder.
Similarly, not requiring the next highest
bidder to accept the license provides
that party with the flexibility to
consider information developed during
the initial negotiations, which may
avoid further unsuccessful negotiations
for the NSA. The Commission seeks
comment on these tentative
conclusions.
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b. Separate NSAs for Different Licenses
218. Given the Commission’s tentative
conclusion to offer regional licenses for
the D Block, the Commission also must
consider whether all the winning
bidders for D Block licenses must
successfully negotiate NSAs, either
jointly or individually, in order for any
of them to be licensed, or whether the
452 This will not always be the case. A postauction disqualification of one winning bidder in
an auction of alternative licenses or a package
bidding auction may not affect other winning
bidders for other licenses. For example, bidders for
a group of single licenses might have prevailed
against a bid on an alternative nationwide license—
or package of single licenses—even if one of the
original winning bids is replaced by a second
highest bid on a single license. The Commission’s
standard package bidding rule applies a bright line
for all package bidding auctions, regardless of the
particular bids in the auction.
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Commission may license a subset of
winning bidders based on their success
in negotiating NSAs notwithstanding
the inability of other winning bidders to
do so. The Commission tentatively
concludes that the Commission may
accept NSAs that are negotiated
between the PSBL and a subset of
winning bidders. When negotiating
NSAs with winning bidders in a subset
of areas to be licensed, the PSBL should
take into account the flexibility needed
in the future to meet the needs of other
unlicensed areas. This should prevent
unnecessary limitations being imposed
on future NSAs for unlicensed areas as
a result of NSAs for areas licensed first.
The Commission further notes that the
Commission may take such concerns
into account in determining whether to
accept NSAs in areas where the winning
bidder and the PSBL are able to come
to agreement.
c. Liabilities of D Block Winning
Bidders That Fail To Negotiate an NSA
219. Almost all commenters
addressing whether to assess a default
payment on a D Block winner that fails
to negotiate an NSA would, at least in
some circumstances, eliminate the
default payment in the event a winning
bidder is unable to negotiate an NSA.
PSST believes that replacing the default
payment with an automatic offer to the
second highest bidder will serve the
purposes underlying the Commission’s
default payment rule.453 APCO
contends that ‘‘[a]bsent bad faith, the D
Block auction winner should not pay a
substantial financial penalty if NSA
negotiations fail (though some cost
should be imposed to encourage serious
good faith negotiations).’’ 454 While
NPSTC believes that the default
payment rule, like a reserve price, can
serve to help ensure that D Block
participants possess the financial,
technical and managerial resources to
perform responsibly, NPTSC believes
that the Commission should provide
sufficient assurance through other
means, in which case the default
payment can be reduced or removed.455
NATOA et al. acknowledge the
difficulty that large default payments
may create for potential D Block
applicants but stress the importance that
any winning D Block bidder that does
not negotiate in good faith should face
‘‘significant’’ penalty or forfeiture.456
220. AT&T proposes that a winning
bidder should only be subjected to
default payments if it acted in bad faith
453 PSST
Comments at 42.
Comments at 38.
455 NPSTC Comments at 10.
456 NATOA et al. Comments at 22.
454 APCO
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57791
and that it should enjoy a presumption
of good faith.457 In addition, AT&T
suggests that the Commission stipulate
that any proposal satisfying minimum
requirements delineated by the
Commission would be deemed per se to
be in good faith.458 Council Tree
Communications agrees that absent bad
faith, no default payment should be
required.459 Northrop Grumman asserts
that the Commission should relieve any
winning bidder that negotiates the NSA
in good faith from any default liability
in the event no agreement can be
reached, but does not discuss the
standard for determining ‘‘good
faith.’’ 460
221. MetroPCS, however, would
retain the default payment for a winning
D Block bidder that fails to negotiate an
NSA, apparently regardless of the
bidder’s good faith.461
222. Discussion. The Commission
tentatively concludes if the Commission
dismisses a winning bidder’s long-form
application solely for the lack of a
Commission-approved NSA, a winning
D Block bidder should only be subject
to a default payment if it chooses not to
accept the Commission’s resolutions to
any and all impasses in the process of
negotiating an NSA.462 Accordingly, if
the Commission does not mandate a
resolution to an impasse for any reason,
or the PSBL refuses to accept a
Commission resolution after the D Block
bidder does so, the winning D Block
bidder will not be subject to a default
payment. Given the importance of
developing a nationwide interoperable
broadband network usable for public
safety, the Commission will attempt to
resolve any disputes between a winning
D Block bidder and the PSBL with
respect to the terms of the NSA. The
Commission will use its discretion to
determine how best to take into account
the winning D Block bidder’s business
plan, as well as the requirements of
public safety users, when mandating a
resolution. The winning D Block bidder
will be subject to a default payment if
it refuses to accept any resolution
mandated by the Commission. In the
457 AT&T
Comments at 23.
Comments at 23.
459 Council Tree Comments at 17. It asserts that
if, however, the Commission retains the default
payment in all circumstances, then only AT&T,
Sprint Nextel, T-Mobile, and Verizon Wireless
should be subject to its provisions. Council Tree
Comments at 20.
460 Northrop Grumman Comments at 9.
461 MetroPCS Comments at 34.
462 The Commission’s competitive bidding rules
and precedents governing post-auction defaults
would apply to bidders for D Block licenses in other
contexts, e.g., failure to make post-auction
payments, failure to file an acceptable long-form
application, etc.
458 AT&T
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event that the Commission does not
mandate a resolution, or if the D Block
winner accepts the Commission’s
resolution but the PSBL declines to do
so, the D Block winning bidder will not
be subject to a default payment. Thus,
a D Block winning bidder only will be
exposed to default payment liability
from a negotiation failure if the
Commission mandates a resolution that
the D Block winner chooses not to
accept. The D Block winner’s subjective
‘‘good faith’’ or ‘‘bad faith’’ will not play
a role in determining default payment
liability. The Commission tentatively
concludes that this standard should
sufficiently protect D Block bidders
against any risk that the PSBL has
requirements for the NSA that cannot be
reasonably accommodated as part of the
D Block winner’s business plan.
Employing a sweeping ‘‘good faith’’
exception to the application of the
Commission default rule as advocated
by some commenters would place the
Commission in the untenable position
of having to evaluate the D block
winning bidder’s motives and business
judgments, which could significantly
delay the NSA resolution process.
Instead, by placing the ultimate decision
of acceptance of the negotiated NSA or
default in the hands of the D Block
winning bidder, it will have the ability
to weigh its choices and reach a
determination of commercial viability.
223. Although the Commission
tentatively concludes that it should not
use a ‘‘good faith’’ standard in
connection with imposing liability on D
Block winning bidders based solely on
a failure to negotiate an NSA, the
Commission asks commenters whether
there is another reasonable alternative to
its proposal to impose liability based on
whether a D Block winning bidder
chooses to accept the Commission’s
resolution of any negotiation disputes.
Further, the Commission seeks
comment on any solutions to the
difficulties of applying a ‘‘good faith’’
standard. The Commission also sought
comment on whether any winning
bidder unable to negotiate an NSA with
the PSBL that was acceptable to the
Commission should be required to pay
the PSBL’s costs arising from the
unsuccessful negotiations. The
Commission tentatively concludes that
the Commission should not impose
such a requirement. While it might
immunize the PSBL against otherwise
unnecessary expense, the overall impact
on the D Block winning bidders’
incentives to negotiate would be
minimal. Finally, the administrative
process of accounting for expenses
directly related to the negotiation might
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needlessly complicate the negotiation
process.
d. NSA Negotiation Process
224. The few comments directly
addressing the negotiating process
within the context of the Commission’s
proposal for negotiation of an NSA
between the D Block winning bidder
and the PSBL are divided on the
Commission’s role. According to APCO,
‘‘it is important that the FCC continue
to be the final arbiter of disputes.’’ 463
Northrop Grumman, in contrast, argues
that the Commission should assure a
winning D Block bidder a ‘‘way out’’ by
eliminating any binding arbitration of
disputes with the PSBL when
negotiating the NSA.464
225. The City of Philadelphia
contends that ‘‘the Commission should
require the PSBL to establish and
delegate authority to regional entities
comprised of public safety agencies to
negotiate terms of the NSA that affect
their operations, including commercial
use of public safety spectrum, priority
access for public safety
communications, and preemption in
cases of local or regional
emergency.’’ 465
226. Discussion. The Commission
tentatively concludes that the
Commission should continue to provide
for final Commission resolution of any
impasse between the parties negotiating
the NSA. While the Commission
concurs with the view that winning D
Block bidder(s) should have a ‘‘way
out’’ without the imposition of liability
in the event that it proves impossible to
negotiate an acceptable NSA, the
appropriate ‘‘way out’’ is to provide for
the Commission to determine the final
resolution of any dispute in connection
with the negotiation of the NSA,
including, should the Commission find
it in the public interest, requiring the
parties to accept specified terms
resolving the dispute. The
Commission’s resolution will be final.
The Commission notes that should the
Commission conclude that it is unable
to arrive at a resolution that the
Commission believes is reasonable to
require the parties to adopt, the
Commission’s tentative conclusion is
that the Commission will not impose
default payment obligations on the
winning D Block bidder. In short, a
winning D Block bidder unable to reach
agreement with the PSBL need only
prove its case to the Commission in
order to be relieved of any liability for
failure to negotiate the NSA. The
463 APCO
Comments at 38.
Grumman Comments at 9.
465 Philadelphia Comments at 3–4.
464 Northrop
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Commission think this ‘‘way out’’
provides the best balance of incentives
to negotiate the NSA in good faith,
rather than leaving the parties free to
reject attempts at resolving any
disputes.
227. With respect to the issue of
involving local entities in the
negotiation of the NSA, the Commission
disagrees with Philadelphia’s proposal
that the PSBL should delegate authority
to regional or local authorities to
negotiate terms with the D Block
licensee. One of the primary roles of the
PSBL is to serve as the single public
safety representative for purposes of
negotiating the NSA. Permitting
multiple public safety parties to conduct
simultaneous NSA negotiations with the
D Block licensee would be inefficient
and unwieldly, and would detract from
the ultimate goal of achieving a
nationwide interoperable broadband
network for the entire public safety
community. At the same time, the PSBL
must carry out its responsibility to
negotiate the NSA in a manner that is
broadly representative of the public
safety community. Accordingly, the
Commission tentatively concludes that,
while it would be contrary to the PSBL’s
primary NSA negotiation responsibility
to allow individual public safety entities
to negotiate directly with the D Block
auction winner(s), the PSBL must
reasonably afford and accommodate
local public safety input into its
deliberations, and in doing so, balance
local needs with the rules and policies
ultimately adopted in this proceeding.
Moreover, the limitation on negotiation
by local agencies does not preclude
them from contributing to the
construction of the network with
financial or other resources where they
are able to do so. Thus, the Commission
tentatively concludes that local public
safety agencies, the PSBL, and the
winning bidder, where they are able to
agree to particular terms for local
contribution to the network that expand
upon a baseline agreement, will be free
to do so and incorporate those terms
within the larger NSA.
e. RFPs and Other Alternatives for
Determining NSA Terms
228. Background. In the 700 MHz
Second FNPRM, the Commission sought
comment on whether a request for
proposal (RFP) approach in conjunction
with an auction might serve to establish
the terms of the Network Sharing
Agreement. More specifically, the
Commission sought comment on
whether to conduct an auction and then
have a number of high bidders submit
proposals in response to an RFP
outlining the needs of the PSBL or,
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alternatively, whether to issue an RFP
outlining public safety needs, then use
one of the proposals submitted in
response to establish rules on the terms
of an NSA, and finally conduct an
auction open to all parties interested in
complying with those terms.
(i) RFP Approaches
229. Comments. Televate proposes an
approach along the lines of the
Commission’s first RFP-related
suggestion. More specifically, Televate
proposes that the Commission accept
proposals to satisfy public safety needs
from all bidders willing to meet a
minimum bid of $150 million and then
score the proposals based on the weight
given to various proposal features,
including the bid amount.466 The
applicant with the highest score would
then negotiate the final NSA details
with the PSBL.467 As part of its proposal
for licensing the D Block, Televate
proposes that bidders unable to
negotiate an NSA would not be subject
to a penalty.468
230. NTCH, a PCS provider and tower
development company, proposes an
RFP-related approach roughly along the
lines of the Commission’s second
suggestion. NTCH suggests that wouldbe ‘‘network managers’’ negotiate
alternative NSAs with the PSBL and
subsequently applicants for licenses
would place bids on licenses, specifying
with which of the potential NSAs the
bidder will comply.469 High bids for
licenses complying with the same NSA
would be aggregated and compared with
aggregated high bids for licenses
complying with the terms of other
NSAs. The NSA receiving the highest
aggregate amount of license bids would
win. The network manager for that NSA
would undertake to build out any
licenses not assigned to other parties
based on the bidding.470
231. Leap proposes that the
Commission use a contracting process
between public safety users and the D
Block licensee to determine what
network requirements the D Block
licensee will satisfy beyond those
required by the Commission’s
commercial rules. Leap appears to
advocate that the Commission modify
its standard 700 MHz rules by imposing
a requirement that the D Block licensee
make its network available to public
safety, via the PSBL, and negotiate in
good faith with public safety users, via
the PSBL, regarding any network
466 Televate
Comments at 5.
Comments at 5.
468 Televate Comments at 6.
469 NTCH Comments at 5.
470 NTCH Comments at 5.
467 Televate
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improvements that the public safety
users may require, with the cost of such
improvements to be financed by the
public safety users.471
232. AT&T, Verizon Wireless, and
others promote a non-auction RFP
approach to achieving the goal of an
interoperable nationwide network.472
233. Discussion. As discussed
elsewhere in this Third FNPRM, the
Commission tentatively concludes that
the detailed Public/Private Partnership
proposal set out in this Third FNPRM
remains the best option to achieve
nationwide build-out of an
interoperable broadband network for
public safety entities, given the current
absence of legislative appropriations for
this purpose and the limited funding
available to the public safety sector.473
The Commission finds that the RFP
proposals submitted by parties in the
record are not as likely to sustain the
Commission’s commitment to achieving
a nationwide interoperable broadband
network that meets public safety needs.
234. For instance, the Commission
tentatively concludes that Televate and
NTCH have not demonstrated that their
proposals are workable in their current
form. For example, Televate’s proposal,
while generally describing the relative
percentage weight to be applied to
different portions of bidder proposals,
does not provide any guidance on the
difficult question of how to actually
score each proposal. With respect to
NTCH’s proposals, the Commission is
not persuaded that the Public Safety
Broadband Licensee will be able to
negotiate final terms of multiple NSAs
with various network operators in the
absence of the actual licensees who are
to build and construct the ultimate
network. Accordingly, any advantages
these proposals might have are
hypothetical and insufficient for us to
adopt them in place of the existing
structure of licensing the D Block and
having the NSA determined by
negotiation between winning bidder(s)
and the Public Safety Broadband
Licensee.
235. Finally, the Commission
tentatively concludes that Leap’s
proposal offers insufficient assurance
471 Leap
Comments at 12–13.
generally, AT&T Comments, Verizon
Wireless Comments.
473 The Commission notes that AT&T and Verizon
Wireless state that their proposals conflict with our
prior determination in the Second Report and Order
that Section 337 of the Communications Act
requires that we license spectrum allocated for
commercial purposes in the upper 700 MHz band
(which includes the D Block) by competitive
bidding, and that AT&T asserts that Congress would
be willing to revise the statute to permit an
alternative approach. See AT&T Comments at 7; see
also Verizon Wireless Reply Comments at 2.
472 See,
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that the D Block licensee will in fact
negotiate terms that will result in an
interoperable broadband network that
meets the needs of public safety on a
nationwide basis. The most likely
outcome of adopting Leap’s proposal
seems to be a nationwide interoperable
commercial network supplemented by a
patchwork of regional arrangements
meeting the needs of public safety to the
extent that local or regional public
safety users are able to finance network
modifications required to meet their
needs. Given that the entire premise of
the Public Private Partnership is that
public safety users lack sufficient
financing to meet their needs, the
Commission tentatively concludes that
Leap’s proposal will not serve the
public interest.
(ii) Alternative Commenter Proposals
236. Comments. In addition to RFP
approaches, several commenters
propose alternative approaches to
establishing an NSA that diverge from
the Commission’s initial proposal that a
winning D Block bidder and the PSBL
negotiate an NSA after an auction to
license the D Block. The Mercatus
Center at George Mason University
proposes that the NSA be negotiated
prior to auctioning the license, ‘‘through
a negotiated rulemaking,’’ with the
Commission establishing a ‘‘negotiation
committee composed of the current
members of the PSBL and the
representatives from potential bidders
in the auction.’’ 474
237. United States Cellular argues that
the PSBL, in conjunction with the
public safety service providers, should
establish the NSA prior to auction,
subject to amendments thereafter.475 In
this context, with the NSA established
pre-auction, United States Cellular
favors subjecting any D Block winner
that does not execute an NSA to the
Commission’s default payment rules.476
238. Discussion. The Commission
tentatively concludes that the public
interest in achieving a nationwide
interoperable broadband network would
be best served by accepting bids for D
Block licenses prior to negotiating the
terms of the NSA. The Commission
therefore declines to adopt these
alternative proposals for determining
the terms of the NSA prior to auction.
As reflected in the Draft Network
Sharing Agreement accompanying this
Third FNPRM, with the revised rules
proposed herein, the Commission
provides considerable additional
certainty as to the ‘‘baseline’’ terms of
474 Mercatus
Center Comments at 3.
Cellular Comments at ii–iii.
476 US Cellular Comments at 21.
475 US
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the NSA, rendering full negotiation of
the NSA in advance of auction
unnecessary. Thus, all key baseline
requirements to be covered by the NSA
have been either defined or identified
prior to auction, thereby providing a
level of certainty to prospective bidders
and ensuring uniformity and
consistency among regional networks in
the event regional licenses ultimately
are implemented. While any given
bidder for a D Block license would
prefer to have all the terms of the NSA
known prior to making its bid, the
Commission has tentatively concluded
that, with respect to additional matters
to be covered by the NSA, negotiation
between a winning bidder and the PSBL
will be the most effective means to
achieving the best result. Terms that are
not essential to the successful operation
of an NSA may nevertheless be
important to the viability of one bidder’s
business plan—while irrelevant to
another. Predetermining such NSA
terms prior to conducting an auction
risks precluding many potential
applicants, as well as denying the
winning bidder flexibility that may be
essential to achieving a nationwide
interoperable broadband network that
meets the needs of public safety. The
Commission seeks comment on the
Commission’s tentative conclusions.
7. Auction Issues
239. Background. In the 700 MHz
Second FNPRM, the Commission sought
comment on four specific issues related
to how to conduct an auction to license
the D Block subject to the Public Private
Partnership. In particular, the
Commission requested that commenters
address (1) whether to restrict eligibility
of entities to participate in the D Block
auction based on their access to other
700 MHz spectrum; (2) how to
determine any reserve price in such an
auction; (3) whether to adopt an
exception to the impermissible material
relationship rule for determination of
designated entity eligibility; and (4)
whether the Commission should modify
the auction default payment rules. In
addition, the Commission solicited
comment on whether there were any
other changes that should be made to
the standard competitive bidding rules
with respect to an auction to license the
D Block.
240. Summary. In this section, the
Commission reaches several tentative
conclusions with respect to issues
related to the next auction to license the
D Block. The Commission has
tentatively concluded in this Third
FNPRM that licenses subject to three
alternative provisions regarding the
technology platform with which the
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license(s) can be used should be offered.
The three alternatives are as follows: a
nationwide license with which the
winning bidder may use a technology
platform of its choice and two types of
regional licenses, one in which the
licenses are to be used with LTE
technology and a second in which the
licenses are to be used with WiMAX
technology. The Commission tentatively
concludes that the Commission will
determine which of these alternative
licenses to assign based on the results of
an auction in which all of the licenses
are offered simultaneously.
241. Furthermore, the Commission
tentatively concludes, in light of the
Commission’s primary goal of
facilitating the development of a
nationwide interoperable shared
broadband network for the publicprivate partnership, that it is in the
public interest to award licenses to the
highest bidder(s) for the license(s) in the
technology platform alternative for
which license(s) receiving bids cover
the greatest aggregate population,
provided that at least half of the nation’s
population is covered. If the
provisionally winning bids do not cover
at least half of the nation’s population,
the auction will be cancelled and no D
Block licenses will be awarded based on
the results of the auction. Thus, the high
bid on the nationwide, technology
platform alternative would be the
provisionally winning bid over any
aggregate bid(s) covering less population
in the two sets of regional licenses until
there are bids on all regions in at least
one of the alternatives. In addition, if
there are high bids for license(s) in more
than one of the alternatives covering
equal population, subject to the
minimum coverage requirement,
licenses will be awarded to high
bidder(s) for license(s) in the technology
platform alternative that receives the
highest aggregate gross bid(s). Finally, to
promote competition during the bidding
for licenses covering as much
population as possible, the Commission
tentatively concludes that the
Commission should direct the Wireless
Telecommunications Bureau to
establish auction procedures that will
encourage bidding on licenses covering
as much population as possible. For
instance, with that goal in mind, the
Commission intends that provision be
made to reduce minimum opening bids
on unsold regional licenses during
bidding. In addition, in furtherance of
the Commission’s goal of achieving the
widest possible population coverage,
the Commission tentatively concludes
that package bidding on the sets of
regional licenses would be in the public
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interest and that the Commission should
direct the Wireless Telecommunications
Bureau to establish procedures for
package bidding for this purpose.
242. In addition, the tentative
conclusions the Commission reach on
issues raised in the 700 MHz Second
FNPRM all reflect the Commission’s
determination that the public interest in
achieving a nationwide interoperable
broadband network that meets the needs
of public safety can best be promoted by
auction provisions that will increase the
likelihood of active participation in an
auction and competition for the
licenses. Accordingly, the Commission
tentatively concludes that the
Commission should not adopt any
restriction on the eligibility to bid for D
Block licenses by any entity otherwise
eligible to be a D Block licensee based
on its spectrum holdings, whether in the
700 MHz band or any other band. The
Commission also tentatively concludes
that the Commission should direct the
Wireless Telecommunications Bureau to
not adopt a reserve price greater than
any minimum opening bid or bids. The
Commission further tentatively
concludes that the Commission should
codify the substance of the previously
granted waiver of the impermissible
material relationship rule with respect
to designated entity eligibility in
connection with the D Block. As
discussed in connection with the
process for establishing the NSA, the
Commission tentatively has concluded
the only change needed with respect to
the Commission’s default payment rules
for purposes of the D Block is a
modification that limits application of
the default payment rule to specific
circumstances following the failure to
negotiate an NSA with the PSBL that is
acceptable to the Commission. Finally,
for a variety of reasons, the Commission
tentatively concludes that the
Commission should not make any of the
additional changes to the Commission’s
competitive bidding rules proposed by
commenters. The Commission seeks
comment on all these tentative
conclusions.
a. Determining Geographic Area and
Platform Technology Through Auction
243. The Commission tentatively
concludes that rather than require that
applicants offer service nationwide or
that winners of regional licenses must
use a predetermined technology
platform, it is in the public interest to
offer simultaneously at auction
alternative licenses, specifically a single
national license for use with a
technology platform of the licensee’s
choice and regional licenses for use
with one of two specific technology
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platforms. Under this proposal, D Block
license(s) would be awarded to the
highest bidder(s) for license(s) in the
technology platform alternative (i.e.,
either the nationwide license or one of
the sets of regional licenses) for which
there are high bid(s) on license(s)
covering the greatest aggregate
population, subject to conditions of
grant, including long-form license
application processing. In the event that
there is a tie in the greatest aggregate
population covered by licenses with
high bids in more than one of the
alternatives,477 the Commission would
award license(s) to the high bidders for
license(s) in the alternative that receives
the highest aggregate gross bid(s).
Furthermore, the Commission
tentatively concludes that the Wireless
Telecommunications Bureau should
establish, as part of its pre-auction
process, specific procedures to
implement such an auction, including
provisions for reducing minimum
opening bids on regional licenses, that
will promote bidding on licenses
covering as much population as
possible, and specific procedures to
make available package bidding for
groups of regional licenses using the
same technology platforms.
244. By offering alternative licenses at
auction simultaneously, the
Commission can use the auction results
to determine which license(s) will
facilitate coverage of the maximum
population by the nationwide
interoperable shared broadband network
for the public-private partnership.
Specifically, the Commission proposes
to offer simultaneously licenses with
three alternative conditions regarding
the technology platform that may be
used by the licensee: ‘‘Alternative (1),’’
a nationwide license with the
technology platform to be determined
by the winning bidder; ‘‘Alternative
(2),’’ a set of regional licenses for use
with the LTE technology platform; and
‘‘Alternative (3),’’ a set of regional
licenses for use with the WiMAX
technology platform. The Commission’s
goal is to provide for an auction in
which applicants could place bids for
license(s) covering the geographic area
of their choice (nationwide and
477 For purposes of determining the extent of
population covered by licenses with high bids, the
Commission would treat the license for the Gulf of
Mexico PSR as having population. Thus, a bid on
the nationwide license would cover a greater
aggregate population than bids on a set of regional
licenses that covered all PSRs other than the Gulf
of Mexico PSR. Similarly, bids on one set of
regional licenses that include a bid on the Gulf of
Mexico PSR license will cover a greater aggregate
population than bids on the second set of regional
licenses covering the same population but without
a bid on the Gulf of Mexico PSR license.
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regional) and subject to specific
provisions regarding the required
technology platform. More specifically,
the Commission seeks to provide
certainty to bidders for regional licenses
about which technology platform would
be required if they become winning
bidders. Thus, the Commission
tentatively concludes that the
Commission should enable an auction
in which applicants can place bids that
represent the values they assign to
licenses for the alternative geographic
areas and alternative technology
platform requirements described above.
245. In furtherance of the
Commission’s primary goal of
promoting the widest possible
population coverage by D Block
license(s) subject to the public-private
partnership conditions, the Commission
tentatively concludes, as an initial
matter, that the Commission will not
award any licenses unless the total
population covered by licenses with
high bids meets or exceeds fifty percent
(50%) of the U.S. population. Setting
the requirement at half of the
population should help assure that
sufficient licenses are assigned after the
next auction to facilitate the ultimate
success of a nationwide interoperable
broadband network for public safety.
The Commission will direct the
Wireless Telecommunications Bureau,
as part of its pre-auction process, to
describe how this requirement will be
implemented in the context of the final
auction procedures. If provisionally
winning bids do not meet this
requirement, the auction will be
cancelled and no D Block licenses will
be awarded based on the results of the
auction.
246. The Commission further
tentatively concludes that, if the fifty
percent (50%) population threshold is
met, winning bidders will be
determined according to the following
criteria. If there is no nationwide bid
and there are not high bids on all
regional licenses in either set, the
bidder(s) with high bid(s) on the D
Block license(s) in the technology
alternative covering the greatest
aggregate population will become the
winning bidders after the close of
bidding. Similarly, if there is a
nationwide bid but not high bids on all
licenses in either regional set, the bidder
for the nationwide license will become
the winning bidder by covering the
greatest aggregate population. In the
event that there is a bid on the
nationwide license and on all licenses
in either regional set, the set of licenses
with the highest aggregate gross bid(s)
will become the winning bidder(s).
Similarly, in the event that there is no
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nationwide bid and the greatest
aggregate population is covered equally
by the high bids in the two sets of
regional licenses, the high bidder(s) for
license(s) in the set with the highest
aggregate gross bid(s) will become the
winning bidder(s). Thus, the
Commission will look first to
population coverage to determine the
winning set of licenses, and to the
highest aggregate bid amounts only if
the population coverage is equal.478
247. The Commission further
tentatively concludes that the Wireless
Telecommunications Bureau should
establish auction procedures that will
encourage bidding on licenses covering
as much population as possible,
including procedures to reduce
minimum opening bids on unsold
regional licenses during bidding. In
particular, the Commission tentatively
concludes that the Bureau should lower
certain minimum opening bids to the
levels set out below if either of the
following two triggers is tripped.
248. First, if there is a bid for the
nationwide license, neither alternative
set of regional licenses has received bids
on all 58 licenses, and the sum of the
provisionally winning bids for either set
of regional licenses is greater than the
amount of the nationwide license bid,
then the Bureau will lower the
minimum opening bids for the regional
licenses that do not have bids. Second,
if there is not a bid for the nationwide
license and there are bids in either set
of regional licenses that cover at least
half the nation’s population, then the
Bureau will lower the minimum
opening bids for the regional licenses
that do not have bids.
249. In particular, in these
circumstances, the Commission
proposes that the Bureau would lower
the relevant minimum opening bids by
setting new minimum opening bids for
licenses without bids at $0.005 per
megahertz per population (MHz-pop). If
either of the regional licenses for the
Gulf of Mexico does not have a bid, its
minimum opening bid will be reduced
to $2,500. Under this proposal, the
Bureau would not further reduce
minimum opening bids during the
auction.
250. The Commission also seeks
comment on alternative triggers for the
478 For purposes of determining the extent of
population covered by licenses with high bids, the
Commission would treat the license for the Gulf of
Mexico PSR as having population. Thus, if two sets
of licenses otherwise cover the same aggregate
population and only one of the license sets includes
the Gulf of Mexico PSR, the set of licenses that
includes the Gulf of Mexico PSR will be the
winning set, regardless of which set has the highest
aggregate bid amount. The nationwide license
includes the Gulf of Mexico PSR.
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reduction of minimum opening bids.
For instance, the Commission seeks
comment on whether, absent a bid on
the nationwide license, there is another
level at which the aggregate bids for
either set of regional licenses should
trigger a reduction in minimum opening
bids for regional licenses without bids.
251. The Commission seeks comment
on all of these tentative conclusions and
on whether such an auction process will
best serve the public interest in
achieving a nationwide interoperable
public safety broadband network. The
Commission also seeks comment on
whether there are other auction
provisions the Commission could
establish that would promote the widest
possible coverage of the nation’s
population by D Block licensees, while
providing meaningful opportunities for
regional bidders that would create
interoperable regional networks.
Further, the Commission seeks
comment on whether the approach
suggested by its tentative conclusions is
consistent with the Commission’s longheld policy of technology neutrality. To
the extent commenters believe it is not,
the Commission asks that they provide
specific input on modifications the
Commission could make that would
advance technology neutrality. For
example, would it be feasible to offer a
fourth set of regional licenses that
would allow the licensees to choose
their own technology? What are the
advantages and disadvantages of
including such an additional set of
regional licenses? Specifically, if
licensees can choose their own
technologies, how could the
Commission assure that regional
deployments on licenses offered in the
fourth regional set will be fully
interoperable consistent with the
Commission’s fundamental premise that
bridging, gateways, and/or IP patches
are insufficient for this purpose?
Finally, the Commission seeks comment
on when the auction should commence.
252. While the 700 MHz Second
FNPRM did not seek comment on the
details of auction design, some
commenters noted their objections to
the possibility of package bidding.
United States Cellular opposes the use
of package bidding in any auction to
license the D Block subject to the Public
Private Partnership.479 The Rural
479 US Cellular Comments at 21–22. Coleman
Bazelon asserted with respect to Auction 73 that
package bidding and anonymous bidding created
difficulties for smaller bidders. See Bazelon
Comments, Attachment at 11–14. Cox
Communications opposes the use of anonymous
bidding in any auction to license D Block that is
not subject to the Public Private Partnership. Cox
Communications Comments at 13–14. MetroPCS
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Telecommunications Group also
opposed package bidding.480
253. The Commission tentatively
concludes that the Wireless
Telecommunications Bureau should
consider specific procedures for package
bidding with respect to regional
licenses. As discussed elsewhere, the
Commission tentatively concludes that
the Commission should offer regional
licenses in order to enhance the
likelihood that an applicant will seek
licenses covering as much population as
possible. While regional licenses offer
applicants greater flexibility than a
nationwide license, and bidders can win
multiple regional licenses, some
potential applicants may prefer to be
able to place single bids covering
geographic areas that are significantly
larger than the roughly state-sized PSRs.
Accordingly, the Commission
tentatively concludes that the
Commission should direct the Wireless
Telecommunications Bureau, as part of
its pre-auction process, to seek comment
on and establish specific procedures for
package bidding for regional licenses
that might encourage bidding on
licenses that cover as much population
as possible. With respect to the concerns
raised by commenters, the Commission
notes that consistent with the
Commission’s conclusion in the Second
Report and Order, the Commission
anticipates that the Wireless
Telecommunications Bureau can
implement procedures for an auction
with package bidding that will not
impose disadvantages on parties that
wish to bid on individual licenses
offered and direct that it consider
procedures that further that objective.481
254. Because of the critical
importance of achieving a truly
nationwide interoperable wireless
broadband network for public safety, the
Commission proposes to take prompt
action to assign any licenses remaining
unsold if an auction meets the
minimum coverage requirement and yet
there is no winning bidder in some
regions. Any remaining unsold licenses
after an auction satisfies the minimum
coverage requirement will be regional
licenses conditioned on the use of a
particular broadband technology
platform. Such licenses will be unsold
if no party is willing to make the
minimum opening bid for the license,
notwithstanding the Commission’s
reduction of the minimum opening bid
to $0.005 per megahertz per population
opposes the use of package bidding in any auction
to license D Block that is not subject to the Public
Private Partnership. MetroPCS Comments at 21–22.
480 RTG Comments at 11.
481 See Second Report and Order at para. 290.
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(MHz-pop). Furthermore, regional
licenses subject to the Public/Private
Partnership will have been sold that
cover at least fifty percent (50%) of the
nation’s population, consistent with the
minimum coverage requirement. Thus,
licenses sold will provide a foundation
for an interoperable public safety
wireless broadband network and yet the
network will not be nationwide because
some regional licenses remain unsold,
despite very low minimum opening
bids. In order to realize the benefits of
a truly nationwide network, the
Commission proposes that under such
unique circumstances, the Commission
tentatively concludes that it should
depart from its standard approach of
offering commercial licenses to the
applicant making the highest bid
without reference to the applicant’s
particular business plan and instead
conduct a Request for Proposal (RFP)
process, incorporating consideration of
applicant’s proposals together with their
bids.482
255. One possible RFP process under
such circumstances would be to request
the submission of detailed proposals
and bids from would-be licensees
regarding how they would use the
regional license to deploy an
interoperable broadband network
useable for public safety in the
applicable region, in conjunction with
the D block licenses already won at the
auction. The Commission would
determine the contents of the request in
consultation with the PSBL, the
applicable regional public safety
planning committee, and other parties,
including public commenters, as may be
appropriate. The RFP would specify the
license being offered, the applicable
Commission rules, any additional
requirements or modifications
appropriate to the region, and specify
the process by which any proposal(s)
and bids would be evaluated. Based on
this process, the Commission would
award the license to the qualified party
with the proposal and bid that best meet
the requirements. The terms of the
proposal would then be incorporated
into an NSA for the region. The
Commission seeks comment on this
approach.
256. Alternatively, The Commission
could re-allocate the spectrum so that it
can be assigned to the Public Safety
Broadband Licensee. The PSBL would
then request the submission of detailed
482 Because this approach does not involve any
procurement by or on behalf of the federal
government, the use of the term ‘‘RFP’’ would not
imply any obligation on the part of the federal
government to apply the Federal Acquisition
Regulations, 48 CFR Chapter 1, or any other
government contracting requirements.
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proposals from would-be licensees
regarding how they would deploy an
interoperable broadband network
useable for public safety in the
applicable region in partnership with
the D block licenses won at the auction.
The Commission seeks comment on
these options.
257. The Commission seeks comment
as well on whether these approaches
would be consistent with the
Commission’s obligations under
Sections 309(j) and 337(a) with respect
to the allocation of spectrum and the
method of assigning D Block licenses.
The Commission believes that, at least
once the Commission has put up for
auction two times the entire D Block
portion of the 36 megahertz of spectrum
allocated for commercial use under
Section 337 and assigned a substantial
number of commercial licenses in this
Block through competitive bidding to
cover at least half of the country, at a
time when the DTV transition has
already taken place and all the rest of
the 36 megahertz of spectrum has been
made available by auction and nearly all
subsequently licensed, the Commission
would have satisfied the allocation and
assignment obligations of Section 337(a)
for those D Block licenses that have
failed to sell. In this regard, the
Commission notes that the
circumstances here differ significantly
from those that informed the
Commission’s conclusion in the 700
MHz 2d R&O that it lacked authority
under Section 337 at that time to
reallocate commercial use guard band
spectrum to public safety.
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b. Eligibility Restrictions
258. Comments. Some public safety
and commercial commenters, including
public safety entities, equipment
manufacturers and large commercial
wireless providers, oppose adopting
eligibility restrictions on participation
in an auction to license the D Block
subject to the Public Private
Partnership. PSST expressly refrains
from taking a position on the issue.
Other commenters, primarily smaller
commercial entities as well as public
interest commenter PISC, support such
a proposal.
259. So long as the Public Private
Partnership is retained, NATOA et al.
do not support any restrictions on
eligibility of otherwise qualified
potential licensees to bid for the D Block
license.483 APCO contends that the
Commission should not impose
eligibility restrictions that are unrelated
483 NATOA
et al. Comments at 21.
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to the goal of developing a national
public safety broadband network.484
260. The Consumer Electronics
Association opposes any restriction on
bidding eligibility that might preclude
incumbents from bidding, given the
incumbents’ qualifications and
experience.485 Motorola opines that
given the significant investment
required to develop and deploy a
public-safety grade broadband network,
excluding current spectrum holders will
put the entire effort in jeopardy.486
Qualcomm contends that the lack of
bidding on D Block in Auction 73
counsels against any restrictions on
eligibility in a subsequent auction.487
261. Both AT&T and Verizon Wireless
also oppose eligibility restrictions,
noting that larger wireless providers are
precisely the parties best positioned to
create a new public safety network.488
262. PSST does not take a position on
eligibility restrictions at this time.489
However, PSST advocates that the
Commission attempt to assure itself of
the intentions of AT&T and Verizon
Wireless, in order to avoid an outcome
where the possibility that those entities
might participate in the auction deters
other participants, notwithstanding a
lack of interest by either AT&T or
Verizon Wireless.490
263. Claiming that AT&T, Sprint, TMobile, and Verizon Wireless currently
have a collective ‘‘chokehold’’ on the
wireless services industry and that there
is a low likelihood that new entrants
will have any opportunity other than
the D Block, Council Tree
Communications asserts that AT&T,
Sprint, T-Mobile and Verizon Wireless
should be prohibited from participating
in an auction to license the D Block.491
For the same reasons, Council Tree
advocates use of the ‘‘attributable
interest’’ standard previously used as
part of the former spectrum aggregation
limit to preclude participation by
parties in which one of the barred
carriers has an attributable interest.492
264. Cellular South ‘‘strongly
encourages’’ the Commission to limit
participation in the D Block auction by
parties who have significant access to
484 APCO
Comments at 38.
Comments at 5.
486 Motorola Comments at 17.
487 Qualcomm Comments at 11–12.
488 AT&T Reply Comments at 12; Verizon
Wireless Comments at 22.
489 PSST Comments at 43. PSST did not amend
this position in its Reply Comments. See, generally,
PSST Reply Comments.
490 PSST Comments at 44–45.
491 Council Tree Communications Comments at
14.
492 Council Tree Communications Comments at
16.
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700 MHz spectrum.493 In particular,
Cellular South endorses the use of the
Commission’s spectrum aggregation
screen used for wireless transactions in
connection with licensing of the D
Block.494 Similarly, Leap proposes that
the Commission bar entities that won a
‘‘substantial amount of spectrum’’ in
Auction 73 from participating in an
auction to license the D Block.495 More
specifically, Leap proposes that any
current license holder or winning
bidder capable of reaching more than
half of the nation’s population with its
700 MHz spectrum be prohibited from
participating in an auction to license D
Block.496 NTCH proposes that parties
with more than 20 megahertz of 700
MHz spectrum in a given market,
primarily AT&T and Verizon Wireless,
should be precluded from bidding on
the D Block in that market.497
265. Citing conditions for competition
that it contends worsened as a result of
the outcome of Auction 73, PISC
advocates the adoption of a spectrum
cap of 95 megahertz in a market, as well
as the grant of its pending petition for
reconsideration which would preclude
the C Block licensee from holding the D
Block license.498 In the current
proceeding, the Rural
Telecommunications Group advocates a
per county spectrum cap of 24
megahertz of 700 MHz band spectrum,
while it seeks in a separate proceeding
to impose a general spectrum cap on
spectrum below 2.3 GHz.499 These
restrictions on eligibility to hold a
license would go beyond the bidding
eligibility restrictions contemplated by
the Commission in the 700 MHz Second
FNPRM.
266. Discussion. The Commission
tentatively concludes that the
Commission should not adopt any
restriction on the eligibility to bid for D
Block licenses by any entity otherwise
eligible to be a D Block licensee based
on its spectrum holdings, whether in the
700 MHz band or any other band.500
The 700 MHz Second FNPRM sought
comment on whether a restriction on
eligibility to bid in an auction to license
the D Block might increase the
likelihood that a new entrant to
nationwide service in the 700 MHz band
485 CEA
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493 Cellular
South Comments at 2.
South Comments at 3.
495 Leap Comments at 4.
496 Leap Comments at 7.
497 NTCH Comments at 13.
498 PISC Comments at 6–7.
499 RTG Comments at 8–11.
500 As the Commission discuss elsewhere, the
Commission tentatively conclude that the
Commission should establish eligibility conditions
for any advisor to the Public Safety Broadband
Licensee.
494 Cellular
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would have an opportunity to do so.
The Commission tentatively concludes
that the public interest in maximizing
the likelihood that a nationwide
interoperable broadband network
meeting the needs of public safety will
be built outweighs any possibility that
a restriction on eligibility to bid in an
auction to license the D Block pursuant
to the Public Private Partnership will
increase the likelihood that a new
nationwide service provider will
emerge. The Commission notes that this
tentative conclusion does not itself bar
any new provider from participating in
an auction to license the D Block.
Moreover, to the extent incumbent
providers have cost advantages over a
new provider with respect to providing
nationwide service that meets the needs
of public safety, the Commission
tentatively concludes it better serves the
public interest to enable those savings to
be put to use in facilitating the
provision of such service, rather than by
requiring the D Block winner to assume
additional costs.
267. The Commission decline to
adopt PSST’s suggestion that the
Commission seeks a commitment from
nationwide incumbent service providers
regarding their intentions to participate
in an auction to license D Block. The
Commission recognizes the PSST’s
concern that uncertainty regarding
potential competition from incumbents
in an auction conceivably could inhibit
other potential bidders, notwithstanding
an ultimate lack of interest by
incumbent nationwide service
providers. However, the Commission
believes that parties dissuaded from
even applying to participate in an
auction by such concerns are unlikely to
have the commitment or the resources
essential to providing service as a D
Block licensee. Moreover, the
Commission recognizes that incumbent
nationwide service providers may be
unable to determine their ultimate
intentions regarding their interest in the
D Block with certainty far enough in
advance of an auction for their
statements to be of use to other
applicants. The Commission does not
want to foreclose the possibility that an
incumbent carrier might become a
licensee by requiring them to make an
earlier determination than other parties
regarding their interest in doing so.
Accordingly, the Commission declines
to adopt PSST’s suggestion that the
Commission seeks a commitment from
nationwide incumbent service providers
regarding their intentions to participate
in an auction to license D Block.
268. The Second FNPRM did not seek
comment on a spectrum cap or any
limitation on the ability of parties to
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hold licenses for the D Block. As many
commenters noted, in the Second
Report and Order, the Commission
considered and rejected restricting
eligibility to hold licenses in the 700
MHz band based on competition in the
market for broadband services.501 While
the spectrum holdings of parties have
changed in the period since that
decision, none of the commenters
demonstrate that these changes have
resulted in any change in the market for
broadband services that mandates
revisiting the Commission’s decision.
Thus, even if within the scope of this
proceeding, the Commission does not
believe the record before us supports
any spectrum cap applicable to the D
Block at this time. The Commission’s
conclusion in this regard is without
prejudice to the Commission’s review of
the record in any other proceedings
regarding potential spectrum caps.
c. Reserve Price
269. Comments. As to the level of any
reserve price used in an auction to
license the D Block, the consensus view
among commenters is that the reserve
should be reduced or even eliminated.
Numerous commenters, from Council
Tree Communications to Verizon
Wireless to APCO, supported
significantly reducing or eliminating a
reserve price altogether. Some
commenters, such as Jon Peha, Coleman
Bazelon, and Northrop Grumman, even
supported eliminating a minimum
opening bid. MetroPCS was the only
commenter that supported an aggressive
reserve price in excess of the minimum
opening bid.
270. NATOA et al. assert that, so long
as the Public Private Partnership is
retained, there is no need for a reserve
price in light of the revenues recovered
in Auction 73.502
271. Ericson asserts that the public
interest would be served by a reserve
price just high enough to assure that a
winning bidder has an economic stake
in successfully negotiating an NSA but
not one linked to the potential value of
the D Block absent the Public Private
Partnership.503 Northrop Grumman
asserts that given the financial success
of Auction 73 and the need to attract
additional interest in the D Block,
neither a minimum opening bid nor a
reserve price would serve the public
interest in an auction to license D
Block.504
501 Parties have filed petitions for reconsideration
of that decision, which remain pending before the
Commission. See, e.g., PISC Petition for
Reconsideration at 2.
502 NATOA et al. Comments at 20–21.
503 Ericson Comments at 33.
504 Northrop Grumman Comments at 9.
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272. Individual commenters Jon Peha
and Coleman Bazelon both contend that
the D Block winner may need subsidies
in order to construct the Public Safety
Network and, accordingly, there should
be no reserve price.505
273. The Commission notes that three
academic commenters address the role
of the reserve price rather than its level.
Sandro Brusco, Giuseppe Lopomo, and
Leslie M. Marx (Brusco et al.) address
the reserve price from the perspective of
using it in order to determine whether
to impose additional requirements on
the licensee. They contend that meeting
a reserve price is likely to be a poor
mechanism for balancing public and
private interests and for identifying the
highest valuing user of the spectrum.506
As an alternative mechanism, Brusco et
al. suggest that the Commission
considers using an ‘‘exclusive buyer
mechanism’’ in which bidders compete
for the right to choose between the
license with requirements or without
requirements (or with fewer
requirements), with a discount on a
bidder’s bid if it chooses to accept the
requirements. In such a mechanism, the
Commission would set the bid discount
to reflect the public benefit of the
requirements.507 Given the
Commission’s tentative conclusion to
retain the D Block license requirements
regardless of the bidding in the next
auction, this analysis is not relevant to
the Commission’s current decisions.
274. Discussion. The Commission
tentatively concludes that the
Commission should direct the Wireless
Telecommunications Bureau to not
adopt a reserve price greater than any
minimum opening bid or bids. The
successful creation of a nationwide
interoperable broadband network
meeting the needs of public safety will
be of enormous value to the public,
quite possibly exceeding the value of
any potential revenue for the public
from the sale of licenses for the D Block.
Thus, in contrast to the Commission’s
decisions with respect to Blocks A, B, C,
and E in Auction 73, the Commission
tentatively concludes that it is not in the
public interest to adopt a reserve price
beyond the minimum opening bid to
assure that the adoption of the Public
Private Partnership does not have an
excessive negative effect on the value of
the public spectrum resource. In
addition, as many commenters note, the
results of Auction 73 more than satisfied
the revenue expectations of the
Congress with respect to the auction of
recovered analog spectrum, as set forth
505 Bazelon
Comments at 2.
et al. Comments at 2–4.
507 Brusco et al. Comments at 5.
506 Brusco
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in the DTV Act. Furthermore, a reserve
price may have negative consequences
by discouraging otherwise viable
bidders from competing in an auction.
Accordingly, no reserve price beyond
the minimum opening bid for the next
auction to license the D Block is needed
to serve a larger policy goal,
notwithstanding the Commission’s
contrary decision in Auction 73. At the
same time, the Commission also
tentatively concludes that it is in the
public interest to direct the Wireless
Telecommunications Bureau to
establish initial minimum opening bids
for each set of alternative D Block
licenses that equal or aggregate
approximately $750 million.508 The
Commission seeks comment on the
Commission’s tentative conclusions,
including whether the proposed
aggregate minimum opening bids
should be lowered.
jlentini on PROD1PC65 with PROPOSALS2
d. Impermissible Material Relationships
for Designated Entities
275. Comments. Only a select group
of commenters addressed this issue.
Council Tree Communications,
MetroPCS, NATOA et al., and Wirefree
Partners all addressed this issue.
276. NATOA et al., favor codifying
the waiver, so long as the Public Private
Partnership is retained, so as to facilitate
the participation of smaller bidders.509
Council Tree Communications favors
codifying the waiver.510 In addition,
Council Tree Communications proposes
that the Commission waive all
designated entity rule modifications
adopted since 2006, in part due to
Council Tree Communications pending
litigation challenging those rule
changes.511 Wirefree likewise supports
codifying the waiver in connection with
making other changes to the designated
entity rules.512 Wirefree would
liberalize the designated entity rules by
returning to a pre-2000 structure of
requiring that qualifying entities
maintain a minimum equity interest in
the applicant while not attributing
revenues of other interest holders to the
applicant.513
277. MetroPCS opposes codifying or
even retaining the waiver. MetroPCS
argues generally that the Commission
should not retain the Public Private
Partnership that is the basis of the
508 Appendix E provides proposed minimum
opening bids for each of the 58 PSRs, which total
approximately $750 million.
509 NATOA et al. Comments at 21.
510 Council Tree Communications Comments at
11.
511 Council Tree Communications Comments at
13.
512 Wirefree Comments at 9–10.
513 Wirefree Comments at 9–11.
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current waiver.514 Consistent with its
view that the Public Private Partnership
will make extreme demands on the D
Block licensee’s financial resources,
MetroPCS argues that that the
Commission should not offer bidding
credits to applicants for D Block
license(s).515 Further, MetroPCS
contends that a D Block exemption from
the impermissible material relationship
rule is not supported by any ‘‘unique or
unusual circumstances surrounding this
spectrum.’’ 516
278. Discussion. The Commission
tentatively concludes that the
Commission should codify the
substance of the previously granted
waiver of the impermissible material
relationship rule so that a D Block
applicant or licensee with lease or resale
(including wholesale) arrangements
with other entities involving more than
50 percent of the spectrum capacity of
a D Block license will not be ineligible
for designated entity benefits solely on
the basis of such arrangements.517 The
waiver of the rule was premised on the
fact that certain aspects of the
Commission’s D Block rules with
respect to the Public Private Partnership
provided adequate safeguards against
the abuses the impermissible material
relationship rule was intended to
prevent. The Commission does not
believe that any of the changes in the D
Block rules the Commission tentatively
proposes today invalidate that premise.
Accordingly, the Commission disagrees
with MetroPCS’s contention that there
are no unique or unusual circumstances
surrounding this spectrum and
tentatively concludes that the
Commission should codify the
waiver.518 The Commission seeks
comment on this tentative conclusion.
279. The Commission further
tentatively concludes that the
Commission should not revisit more
generally the rules regarding designated
514 MetroPCS
Comments, passim.
Comments at 34–35.
516 MetroPCS Comments at 36.
517 If a D Block applicant or licensee utilizes this
exception to the impermissible material
relationship rule, it still remains subject to the
Commission other designated entity eligibility
rules, including the Commission controlling
interest, unjust enrichment, attributable material
relationship, audit, eligibility event and annual
reporting rules. C.f., In Re Waiver of Section
1.2110(b)(3)(iv)(A) of the Commission’s Rules For
the Upper 700 MHz Band D Block License, Order,
22 FCC Rcd. 20354, 20357 para.8, fn. 21 (2007).
518 Because this exception does not extend to
arrangements for use of the spectrum capacity of
licenses other than the D Block license, if an
applicant or licensee has an impermissible material
relationship with respect to the spectrum capacity
of any other license(s), the normal operation of the
Commission’s rules will continue to render it
ineligible for designated entity benefits for the D
Block license.
515 MetroPCS
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57799
entity eligibility as proposed by Council
Tree Communications or Wirefree.
Without prejudging those proposals, it
is more appropriate to address the rules
regarding designated entity eligibility
generally in a separate proceeding. The
Commission can consider its general
designated entity eligibility rules in
various pending proceedings, including
a pending Further Notice of Proposed
Rulemaking and pending petitions for
reconsideration arising from the
Commission’s most recent revisions to
the designated entity program. The
Commission also rejects the notion that
Council Tree Communications’ attempt
to litigate the Commission’s existing
designated entity rules, which the
Commission adopted to further the
public interest and applied in the recent
auctions of Advanced Wireless Services
and 700 MHz licenses, is any basis for
suspending those rules in the next
auction to license the D Block spectrum.
e. Default Payment Amounts
280. Comments. Few commenters
addressed whether to modify the default
payment outside of the context of a
failed attempt to negotiate an NSA.
Andrew Seybold states without further
discussion that ‘‘the penalty clause
should be removed.’’ 519 Qualcomm
asserts that the default rules are among
rules that must be revised but suggests
only that the Commission waits until
the close of the comment cycle in
response to the 700 MHz 2d FNPRM
and then convene all affected
stakeholders in a meeting or meetings to
ensure that the revised rules strike the
right balance.520
281. Discussion. The Commission
tentatively concludes that the
Commission’s existing rules governing
the amount of the default payment are
generally appropriate for circumstances
in which a D Block winning bidder may
be liable for a default payment.521
However, the Commission also
tentatively concludes that for an auction
of alternative D Block licenses, the
Commission should apply the same
default payment amount rule regardless
of whether or not it package bidding is
utilized. Currently, the Commission
rules provide that the Bureau, prior to
auctions without combinatorial bidding,
i.e., package bidding, shall establish the
percentage for the additional payment
519 Andrew
Seybold Comments at 7.
Comments at 11.
521 As discussed elsewhere, the Commission has
concluded tentatively that the Commission default
payment rules should be modified with respect to
the circumstances under which they apply to D
Block winning bidders following a failure to
negotiate an NSA with the PSBL that is acceptable
to the Commission.
520 Qualcomm
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component of a default payment
between 3 and 20 percent. In auctions
with combinatorial or package bidding,
the Commission’s rules provide that this
percentage shall be 25 percent. The
Commission established this higher
percentage for package bidding auctions
because of the potential interrelatedness of bids in such an auction.
Because each bidder’s bid in a package
bidding auction is combined with bids
on other licenses to determine the group
of winning bids, any one bid may affect
which bids win other licenses.
Consequently, the Commission
concluded that it is particularly
important to discourage defaults in
package bidding auctions. As the
Commission has discussed elsewhere,
bids in an auction of alternative licenses
are also inter-related, regardless of
whether package bidding is available.
However, the Commission tentatively
concludes that in an auction of
alternative licenses for the D Block
subject to the 700 MHz Public/Private
Partnership, whether or not package
bidding procedures are implemented,
the Commission should direct the
Wireless Telecommunications Bureau to
set the percentage of the additional
payment for defaults at between 3 and
20 percent, the same range for an
auction without package bidding. The
Commission tentatively concludes that
this range will enable the Bureau to set
an appropriate percentage as part of its
pre-auction process, taking into account
both the special circumstances of the D
Block and the final details of the auction
process to be used. The Commission
seeks comment on this tentative
conclusion.
f. Other Competitive Bidding Rules
282. Background. In the 700 MHz
Second FNPRM, the Commission sought
comment on other potential changes to
the Commission’s competitive bidding
rules, potentially to assist new entrants
or to serve other public interest
purposes.
283. Comments. Sprint proposes a
system of performance-based bidding
credits, in which applicants agreeing to
meet any of up to 5 potential stricter
performance requirements could receive
bidding credits, subject to a requirement
to repay the credit, with interest, if the
applicant does not meet the stricter
standards. AT&T opposes this proposal,
characterizing it as ‘‘[a]llowing carriers
to eviscerate [minimum] standards by
paying additional money.’’ 522
Commenter Andrew Seybold proposes
that an auction be conducted to
determine the party that will manage
522 AT&T
Reply Comments at 21.
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the Public Safety Network, with
incumbent carriers constructing the
network in response to other incentives,
such as tax credits and access to the
network.523 In this context, he advocates
that the Commission lift its anticollusion rule, in order to enable
communications among incumbent
carriers and prospective network
managers.524 As part of its own
alternative proposal, NTCH suggests
that the Commission lift the anticollusion rule prior to the auction,
apparently unaware that the rule does
not apply until would-be licensees file
applications to participate in the
auction.525 NATOA also suggests
‘‘relaxing’’ the Commission’s anticollusion rules, apparently under the
mistaken belief that the rules prohibit
the creation of bidding consortia prior to
the auction.526 United States Cellular
opposes the use of anonymous bidding
in any auction to license the D Block
subject to the Public Private
Partnership.527 As noted above, Council
Tree Communications and Wirefree
Partners suggest several changes to the
Commission’s designated entity
program in order to encourage
participation by designated entities.
284. Discussion. The Commission
seeks further comment with respect to
the approach advocated by Sprint. As
discussed elsewhere in this Third
FNPRM, the Commission has reached
tentative conclusions with respect to the
appropriate level of performance
mandates. The Commission asks that
commenters address whether it should
modify these performance mandates by
offering bidding credits to applicants
willing to commit themselves to
meeting greater requirements. In light of
the mandates proposed herein, with
respect to which mandates should the
Commission offer bidding credits for
commitments to exceed the
requirements? What would be the level
by which the mandate should be
exceeded before a credit should be
offered? What amount of credit is
appropriate for a particular performance
requirement? Should the credit only be
523 Andrew
Seybold Comments at 4.
Seybold Comments at 5.
525 NTCH Comments at 14.
526 NATOA et al. Comments at 21.
527 US Cellular Comments at 21–22. Coleman
Bazelon asserted with respect to Auction 73 that
package bidding and anonymous bidding created
difficulties for smaller bidders. See Bazelon
Comments, attachment at 11–14. Cox
Communications opposes the use of anonymous
bidding in any auction to license D Block that is
not subject to the Public Private Partnership. Cox
Communications Comments at 13–14. MetroPCS
opposes the use of package bidding in any auction
to license D Block that is not subject to the Public
Private Partnership. MetroPCS Comments at 21–22.
524 Andrew
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refunded from the full bid price after the
greater requirement is met? Or should
the commitment be sufficient to receive
a reduction in the bid amount, subject
to repayment if the commitment is not
fulfilled? Does the appropriate approach
change depending on the particular
performance requirement?
285. The Commission tentatively
concludes that it should not make any
of the changes commenters propose to
the Commission’s competitive bidding
rules. As the Commission’s anticollusion rule applies solely after
parties file applications to participate in
bidding for Commission licenses, the
Commission tentatively concludes
bidding consortia may form prior to the
application deadline without any
relaxation of the rule. Furthermore, in
light of the Commission’s tentative
conclusion that the winning bidder for
a D Block license should negotiate an
NSA only after the conclusion of the
auction, there is no reason to relax the
anti-collusion rule to permit
communications during the auction in
connection with the terms of the NSA.
Commenters’ proposals regarding
certain details of auction design, such as
anonymous bidding, are best addressed
in the context of the Wireless
Telecommunication Bureau’s preauction notice and comment process.528
Finally, for reasons discussed above, the
Commission will not consider in this
proceeding the wholesale changes to the
Commission’s designated entity
eligibility rules proposed by Council
Tree Communications and Wirefree
Partners.
8. Safeguards for Protection of Public
Safety Service
286. Background. In the Second
Report and Order, the Commission
established a number of measures to
safeguard the interests of public safety
on an ongoing basis following the
execution of the NSA. These measures
included: (1) Requirements related to
the organization and structure of the 700
MHz Public/Private Partnership; (2) a
prohibition on discontinuance of service
provided to public safety entities; (3)
special remedies in the event that the D
Block licensee or Public Safety
Broadband Licensee fail to comply with
either the Commission’s rules or the
terms of the NSA; (4) a special,
528 The Commission detailed the public interest
reasons underlying its decision to utilize
anonymous bidding in for the auction of 700 MHz
Band licenses in the Second Report and Order and
has used anonymous bidding in a number of
Commission auctions for wireless services licenses.
Accordingly, absent good cause, the Commission
expects that anonymous bidding likely will be
employed in the next auction of the D Block.
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exclusive process for resolving any
disputes related to the execution of the
terms of the NSA; and (5) ongoing
reporting obligations.529 These measures
addressed concerns that problems
arising after the execution of the NSA,
whether financial or otherwise, might
threaten the build-out of the network or
the provision of services to public
safety, or that financial problems might
lead the D Block licensee to draw its
license or the network assets into a
bankruptcy proceeding. The
Commission did not specifically
propose any modifications to these rules
in the Second FNPRM.
287. Discussion. The Commission
tentatively concludes that the
Commission should retain these rules to
safeguard the interests of public safety
on an ongoing basis following the
execution of the NSA.The Commission
continues to believe that the measures
the Commission previously adopted are
necessary to address the possibility that
problems could arise in the
implementation of the NSA or the
operation of the common network, and
that they will protect the interests of
public safety without compromising the
commercial viability of the 700 MHz
Public/Private Partnership.530
288. The Commission also notes that,
in addition to the quarterly reporting
requirements adopted in the Second
Report and Order, it has proposed
elsewhere in this Third FNPRM that the
D Block licensee be required to provide
to the Public Safety Broadband Licensee
monthly network usage statistics. The
Commission also finds that these
existing and newly proposed reporting
requirements address the concerns of
some commenters regarding the need for
oversight of the D Block licensee’s
operations. The Commission seeks
comment on these tentative
conclusions.
289. In addition, the Commission
seeks comment on whether a winning
bidder for any D Block license should
post financial security to ensure that the
network will be constructed pursuant to
the terms of the NSA and the
Commission’s rules. In particular, the
Commission seeks comment on whether
a winning bidder for D Block licenses
should be required to obtain an
irrevocable standby letter of credit
529 Second Report and Order, 22 FCC Rcd at
15467–71 paras. 517–530.
530 But see Letter from Warren G. Lavey, US
Cellular, to Marlene H. Dortch, Secretary, FCC, WT
Docket 06–150, PS Docket 06–229, filed Sept. 17,
2008 (asserting that the requirement to form
bankruptcy remote special entities ‘‘may be
detrimental to the rapid, efficient deployment and
operation of networks by many potential D Block
licensees’’).
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(‘‘LOC’’) no later than the date on which
its executed NSA is submitted to the
Commission. The Commission also
seeks comment on whether only
applicants that do not meet certain
criteria should be subject to this
requirement. For example, should the
Commission establish criteria, based on
bond rating, market capitalization, or
debt/equity ratios (combined with
minimum levels of available capital)
that, if not met, would make an LOC
necessary?
290. The Commission seeks comment
on the amount of the LOC necessary to
ensure uninterrupted construction of
the public safety network, as well as the
length of time that the LOC should
remain in place. For example, the
amount of the LOC could be determined
on the basis of estimated annual budgets
that could accompany the build-out
schedule required as part of the NSA, or
the Commission could simply require a
specific dollar figure for the LOC in an
amount that would ensure that
construction could proceed for a given
amount of time. Should the amount of
an initial LOC, or a subsequent LOC,
also ensure the continuing maintenance
and operation of the network? Under
what circumstances should the D Block
licensee be required to replenish the
LOC?
291. The Commission also seeks
comment on whether the LOC should be
issued in favor of a trustee and the
Commission. What events would
constitute a default by the D Block
licensee that would allow the trustee or
the Commission to make a draw on the
entire remaining amount of the LOC?
Further, the Commission notes its intent
that, in the event of bankruptcy, the
LOC should be insulated from claims
other than the draws authorized here for
the construction and operation of the
network. The Commission seeks
comment on provisions it might adopt
to provide safeguards to this effect.531
292. As an alternative to an LOC, the
Commission seeks comment on whether
it should require parties to obtain
performance bonds covering the cost of
network construction or operation. The
531 For example, the Commission could require as
a condition of the Public/Private Partnership
License that any winning bidder for a D Block
license and related parties must first provide the
Commission with a legal opinion letter that would
state, subject only to customary assumptions,
limitations and qualifications, that in a proceeding
under Title 11 of the United States Code, 11 U.S.C.
Section 101 et seq. (the ‘‘Bankruptcy Code’’), in
which the winning bidder is the debtor, the
bankruptcy court would not treat the Letter of
Credit or proceeds of the Letter of Credit as property
of the winning bidder’s bankruptcy estate (or the
bankruptcy estate of any other bidder-related entity
requesting the issuance of the LOC) under Section
541 of the Bankruptcy Code.
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57801
Commission also seeks comment on the
types of requirements that bond issuers
might impose and whether such
requirements are consistent with the
public interest in permitting a range of
qualified parties to seek D Block
licenses. The Commission also seeks
comment on the relative merits of
performance bonds and LOCs and the
extent to which performance bonds, in
the event of the D Block Licensee’s
bankruptcy, might frustrate the
Commission’s goal of ensuring timely
buildout of the network. The
Commission also seeks comment on
whether there are other protections that
it should reasonably seek to ascertain
the financial viability of the winning
bidder, and ensure construction of the
network and its subsequent operation.
9. Local Build-Out Options
293. Background. In the Second
Report and Order, the Commission
adopted provisions for early build-out
in areas that do and do not have a buildout commitment from the D Block
licensee. Under these provisions, for
areas with a build-out commitment,
some commenters request that public
safety entities can, with pre-approval
from the Public Safety Broadband
Licensee, construct at its own expense
a broadband network in that area that
conforms to the requirements and
specifications of the NSA, and must
transfer such network to the D Block
licensee for integration into the Shared
Wireless Broadband Network. In this
case, the public safety entity’s
compensation would be limited to the
costs the D Block licensee would have
incurred had it constructed the network
in that area itself. Alternatively, rather
than constructing the network at its own
cost, the public safety entity could
provide the D Block licensee with the
funds necessary to do so.532 For areas
lacking a build-out commitment from
the D Block licensee, public safety
entities may, at their own expense,
construct and operate an exclusive
broadband network that is fully
interoperable with the Shared Wireless
Broadband Network, pursuant to a
spectrum leasing arrangement with the
Public Safety Broadband Licensee, and
after the Public Safety Broadband
Licensee first offers the D Block licensee
the option of constructing a network in
that area itself.533
294. Comments. The Second FNPRM
did not specifically seek comment on
changes to the rules on local public
safety build-out. However, some
commenters advocated for greater
532 See
533 See
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flexibility or autonomy in building out
their own networks in the 700 MHz
public safety broadband spectrum.534
APCO cautions that ‘‘while some
accommodation for certain local
deployments in the context of a national
license is necessary, the Commission
must avoid creating yet another
situation consisting of multiple islands
of robust, but incompatible, public
safety networks with vast unserved
areas in-between.’’ 535 Similarly,
California asserts that ‘‘[t]he vision of a
nationwide Shared Wireless Broadband
Network (SWBN) cannot be realized
through the deployment of a multitude
of [discrete] systems,’’ arguing that,
given limited economic resources,
‘‘[s]ome public safety agencies in urban
areas would likely implement
broadband networks, but those in rural
areas would find it harder to justify
building a local or regional broadband
network.’’ 536 APCO adds that it
continues to support allowing local
deployments in areas where the national
network is unlikely to be built in the
near future, conditioned on eventual
integration into the national network.537
295. In an ex parte letter, AlcatelLucent proposes changes to the local
build-out rules that would create an
additional option allowing a public
safety entity to ‘‘enter a spectrum lease
agreement with the Public Safety
Broadband Licensee and, at its own
expense, build out a 700 MHz
broadband network in any area where
the public-private broadband system has
not yet been built.’’ 538 Further, if the D
Block licensee ‘‘were to seek to build
out and operate the public-private
network in the same area, it would be
required to compensate the public safety
entity, based upon commercially
reasonable terms, for the value of the
network to be integrated into the publicprivate network.’’ 539 Alcatel-Lucent
also argues that ‘‘[n]etwork integration
and technological evolution are
commonplace in commercial mobile
networks today, and there is no
technological impediment to
integration—regardless of
technologies.’’ 540
296. Discussion. The local build-out
rules the Commission adopted in the
Second Report and Order afford public
534 See Kentucky Wireless Interoperability
Executive Committee Comments at 1, San Francisco
Comments at 3–4; Philadelphia Comments at 5–8,
NYPD Comments at 7–10, District of Columbia
Comments at 8–15.
535 Id. at 3.
536 California Comments at 7.
537 See APCO Reply Comments at 3 n.2.
538 Alcatel-Lucent Ex Parte at 2.
539 Id.
540 Id.
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safety entities with options to build out
broadband networks in advance or in
lieu of the D Block licensee’s build-out,
so that public safety agencies may
obtain use of advanced broadband
networks more quickly if their needs so
dictate. Particularly in areas that have a
build-out commitment, a public safety
entity serving that area may already
have invested resources in development
of plans to deploy a system that is
tailored to that area and thus may have
options available to accelerate the
deployment of the public safety
broadband network to its jurisdiction.
At the same time, the Commission
recognizes that since the auction of the
D Block did not result in a winning bid,
there has been an associated delay in
the deployment of the nationwide
broadband network, which may impact
the extent to which some public safety
agencies may desire to construct their
own networks before a new auction is
completed.
297. In its comments, the District of
Columbia (the ‘‘District’’) made certain
requests related to the Regional Wireless
Broadband Network (RWBN) 541
operated by the National Capital Region
(NCR) jurisdictions, of which the
District is a member.542 The District
indicates that $8.2 million in Federal
grant funds have been expended to
build out the RWBN thus far, primarily
within the District.543 The District
further states that it requires certainty to
realize a return on further investment in
the program.544 Specifically, the District
requests that the Commission authorize
it to: (i) Continue deploying and
operating the RWBN for 10 years from
the date of any final decision on its
request, or require the interoperable
shared broadband network into which
541 NCR deployed the RWBN in the 700 MHz
Band pursuant to a waiver issued by the PSHSB in
January 2007. See Request by National Capital
Region for Waiver of the Commission’s Rules to
Allow Establishment of a 700 MHz Interoperable
Broadband Data Network, WT Docket No. 96–86,
Order, 22 FCC Rcd 1846 (PSHSB 2007) (NCR
Waiver Order). NCR operates the RWBN pursuant
to a grant of a request for Special Temporary
Authority. See Special Temporary Authorization,
File No. 0003149202, Call Sign WQHY489 (Nov. 1,
2007); Special Temporary Authorization, File No.
0003397425, Call Sign WQHY489 (April 28, 2008);
Special Temporary Authorization, File No.
0003151108, Call Sign WQHY490 (Nov. 1, 2007);
Special Temporary Authorization, File No.
0003397644, Call Sign WQHY490 (April 28, 2008).
542 The NCR consists of eighteen jurisdictions:
The District of Columbia, Montgomery and Prince
Georges Counties of Maryland, and the cities of
Gaithersburg, Rockville, Takoma Park, Bowie,
College Park, and Greenbelt; Arlington, Fairfax,
Loudon and Prince William Counties of Virginia,
and the cities of Alexandria, Falls Church, Town of
Leesburg, Manassas, and Manassas Park. See The
National Capital Planning Act of 1952, 40 U.S.C. 71.
543 District Comments at 14.
544 District Comments at 13.
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the RWBN would be incorporated to
provide service to District users for 10
years free of charge; (ii) use the 700
MHz broadband spectrum for 10 years
from the date of a final decision or until
the RWBN is incorporated into the
interoperable shared broadband
network; (iii) use the RWBN to provide
service to as broad a range of users as
possible, including municipal, state,
and Federal users, as well as other users
not typically defined as ‘‘first
responders;’’ and (iv) offer service and
assign priority levels to specific groups
of users as the District deems
appropriate and necessary to sustain the
RWBN financially.545
298. The Commission tentatively
declines to grant the District’s request.
The Commission finds that granting
independent operational authority for a
significant number of years to the
District as it requests would undermine
the goals of this proceeding and be
inconsistent with the tentative
proposals the Commission have
outlined in this Third FNPRM. Further,
if, as the District requests, the
Commission requires the D Block
licensee to provide free service to the
District, the Commission is concerned
about the resulting impact on the
commercial viability of a regional or
nationwide D Block licensee. Moreover,
as the Commission tentatively
concluded elsewhere, the District would
not be permitted to provide service to a
wider range of users than would be
eligible to use the nationwide wireless
broadband network. While the
Commission appreciates the District’s
desire to realize a financial return on the
investment made in deploying the
RWBN, the Commission observes that
the NCR on multiple occasions
knowingly undertook such action
entirely at its own risk.546
299. While the Commission
tentatively declines to grant the
District’s specific requests outlined
above, the Commission remains
545 District
Comments at 3.
the Commission observed in the Second
Report and Order, in requesting its waiver to
operate its broadband network, NCR specifically
represented that it ‘‘fully underst[ood] and
accept[ed] that as a result of any rulemaking
changes the Commission may make, the NCR will
have to comply with the results of such rule
making,’’ including possible change of its network
technology to a different standard or transition to
a public safety broadband network managed by a
single national licensee. Second Report and Order
at para. 477 (citing NCR Waiver Order at 1849 para.
8, quoting letter from Bill Butler, NCR
Interoperability Program, OCTO-Wireless Programs
Group, to Marlene H. Dortch, Secretary, FCC (Jan.
29, 2007) and attached e-mail from Robert L.
LeGrande, II, NCR Interoperability Program, Deputy
Chief Technology Officer, District of Columbia, to
Dana Shaffer, Deputy Chief, Public Safety and
Homeland Security Bureau, FCC (Jan. 28, 2007)).
546 As
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sensitive to the fact that the District has
expended significant efforts to achieve
broadband interoperability in the nearterm for public safety users within the
District through the RWBN. Therefore,
consistent with the Second Report and
Order, the Commission continues to
contemplate that the Public Safety
Broadband Licensee will consult NCR in
negotiating the schedule for buildout of
the shared interoperable network in the
area served by the RWBN, and will
provide NCR a reasonable amount of
time to make any modifications
necessary to incorporate the RWBN into
the shared network.547 In this manner,
the Commission hopes to minimize any
delays that the District might otherwise
experience in realizing the benefits of an
interoperable broadband network geared
towards public safety needs. In
addition, to the extent that the D Block
licensee building out the NCR areas
seeks to utilize any hard assets of the
RWBN, such as tower facilities, in
constructing the 700 MHz interoperable
shared broadband network, NCR may
seek appropriate compensation for the
use of such assets.
300. As noted above, Alcatel-Lucent
advocates changes to the Commission’s
local build-out rules to permit local
public safety to build-out immediately,
and thus prior to completion of a
reauction of the D Block and selection
of the air interface that would support
nationwide interoperability. AlcatelLucent argues that, regardless of the
technology deployed, the local network
could be readily integrated into the
regional or nationwide D Block license,
and proposes that the D Block licensee
would be required to ‘‘compensate the
local public safety entity based upon
commercially reasonable standards.’’ 548
301. While early deployment of
public safety broadband networks
would afford public safety agencies with
the benefits of such networks more
quickly, the Alcatel-Lucent proposal
also poses a number of concerns. For
example, unlike the Commission’s
current rules, which only contemplate
the early build-out of systems utilizing
the same technology as the D Block
licensee, a public safety entity that
engages in early deployment risks
choosing a technology that is not
compatible with the technology that
will be deployed later by the D Block
licensee. Although Alcatel-Lucent
argues that any technology deployed by
a public safety entity could be
integrated into the regional or
nationwide broadband network, the
Commission has tentatively concluded
547 See
Second Report and Order at para. 478.
548 Alcatel-Lucent Ex Parte at App. p. 2.
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that the nationwide interoperable
network should have the same air
interface technology. Accordingly, the
Commission seeks comment on how it
can ensure that a public safety entity
engaging in such early build-out selects
a compatible technology that is fully
interoperable with the Shared Wireless
Broadband Network(s), meaning
consistent with the Commission’s
tentative conclusions elsewhere
concerning interoperability
requirements for all operations in the
700 MHz public safety broadband
spectrum, and thus not via gateways
and bridges.
302. The Commission also seeks
comment on Alcatel-Lucent’s proposal
that a D Block licensee seeking to
operate in the area be required to
compensate early public safety builders
based upon ‘‘commercially reasonable
standards.’’ Should the Commission
replace its current rule, which limits
compensation for early build to the
costs that the D Block licensee would
have incurred, with one based on
‘‘commercially reasonable standards?’’
How would ‘‘commercially reasonable
terms’’ be determined? What if the
network constructed by the local public
safety agency was of little worth to the
D Block licensee, whether due to
technology choices, network design, or
a D Block licensee’s existing resources
in the area? Would reliance on such a
basis for compensation lead to
significant or intractable disputes either
at the Commission or in courts?
303. Given the potential costs and
benefits in allowing early deployment of
wireless public safety broadband
networks, the Commission seeks
comment on the appropriate balance
between ensuring flexibility for public
safety entities to engage in early
deployment and providing some
mechanism for compensation, if not
under the existing rules, while also
ensuring the Commission’s goal of
achieving nationwide interoperability
across networks and maintaining the
financial viability of the 700 MHz
Public/Private Partnership. To what
extent should public safety entities be
allowed to deploy in advance of future
build out by the D Block licensee? Are
the Commission’s existing rules on
compensation for early build-out
sufficient, or should some allowance be
made for compensation for early buildout of systems using technologies that
are different and incompatible with
those to be deployed by the D Block
licensee for that area? Would allowing
compensation for early deployment of
incompatible technologies stand as a
disincentive to auction participation by
commercial entities?
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57803
10. Open Platform/Wholesale
Conditions
304. Background. In the Second
Report and Order the Commission
declined to restrict the D Block licensee
to operating exclusively on a
‘‘wholesale’’ or ‘‘open-access’’ basis.549
The Commission concluded that it
would not serve the goals of the Public/
Private Partnership to impose special
wholesale or open-access requirements
on the D Block licensee.550 Instead, the
Commission provided the D Block
licensee with the flexibility to provide
wholesale or retail services or other
types of access to its network that
comply with the Commission rules and
the NSA.551 The Commission reasoned
that the D Block licensee has the
flexibility to choose the commercial
service it will provide based on its
determination of market needs; and that
this flexibility improves the viability of
the 700 MHz Public/Private Partnership
and serves the interests of public
safety.552 With respect to services
offered to public safety, the Commission
noted that the Public Safety Broadband
Licensee will have the right to
determine and approve specifications
for public safety equipment used on the
network and the right to purchase its
own subscriber equipment from any
vendor it chooses, to the extent such
specifications and equipment were
consistent with reasonable network
control requirements established in the
NSA.553
305. In the Second FNPRM, the
Commission sought comment on
whether the Commission should require
the D Block licensee to operate on an
exclusively wholesale or open access
basis.554 The Commission asked for
comment on how an open access
environment might affect public safety,
and whether the Commission needs to
clarify or revise the operational
responsibilities of the D Block and the
Public Safety Broadband Licensees if
the Commission were to adopt a
wholesale approach.555 Further, the
Commission sought comment on
whether maintaining a flexible approach
would improve the viability of the
Public/Private Partnership.556
306. Comments. In response to the
Second FNPRM, the Commission
received some comments on this subject
549 Second
Report and Order at para. 545.
550 Id.
551 Id.
552 Id.
553 Second
Report and Order at paras. 405–406,
546.
554 Second
FNPRM at para. 187.
555 Id.
556 Id.
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matter. Motorola recommends that the
Commission imposes an open platform
condition and allows public safety to
use any device or application provided
it does not harm the network.557
Wireless RERC recommends
consideration of an open access network
contending that such a condition would
allow public safety entities access to
numerous suppliers of IP-based
communications equipment and
systems capable of interconnecting with
the network.558 It believes that this
would allow the communication of
emergency information to be accessible
in many formats.559 Cellular South
argues that the Commission should
impose a mandatory wholesale
condition as a way to give smaller
carriers entry into the market.560 PISC
states that the Commission should
impose both open access and wholesale
conditions as they will help enhance
competition and further public interest
goals.561
307. Qualcomm argues that the
Commission should not impose an open
platform condition or forbid any
particular business models.562 AT&T
argues that the Commission should not
impose an open access platform or a
mandatory wholesale condition because
it violates the flexible use approach
which has proven to produce the best
technological and business practices.563
It further asserts that a public/private
partnership will fail if it is constrained
by conditions not compatible to the
reality of the market.564 Google
recommends that the Commission not
impose open access or wholesale
conditions for the present time, and
states they should keep a careful watch
on anti-consumer practices and
intervene with such measures when
appropriate.565 Coleman Bazelon argues
against imposing a wholesale condition
because the spectrum will be most
valuable to the larger carriers.566
Ericsson argues against imposing a
wholesale condition because such
limitations on the business plan of the
D Block licensee would make bidding
less attractive to many potential
bidders.567 CTIA recommends that the
Commission base its rules on the same
557 Motorola
Comments at 11.
RERC Comments at 14.
559 Wireless RERC Comments at 15.
560 Cellular South Comments at 3–4.
561 PISC Comments at 7–10.
562 Qualcomm Comments at 11.
563 AT&T Comments at 18; AT&T Reply
Comments at 10–14.
564 AT&T Comments at 18.
565 Google Comments at 10; Google Reply
Comments at 1–4.
566 Coleman Bazelon Comments at 22.
567 Ericsson Comments at 35.
market oriented, flexible-use service
rule model that has successfully created
today’s wireless marketplace.568 Verizon
notes that the Commission should reject
calls to impose wholesale-only and
open access requirements.569 Motorola
supports ‘‘open access for public safety
subscriber equipment and applications
from multiple sources that meet public
safety requirements.’’ 570
308. Discussion. In the Second Report
and Order, the Commission declined to
impose broad open access or wholesale
service requirements in the 700 MHz
band because the Commission found
that it would not serve the goals of the
Public/Private Partnership to mandate
these requirements on the D Block
licensee specifically.571 Rather, the
Commission decided that the D Block
licensee should be given the flexibility
to choose the commercial service it
would provide.572 In the Commission
determination, the Commission noted
that the effects of an open access
environment were unknown, and,
before it was mandated, it was necessary
to understand the impact that
mandatory provisions would have on
the public safety environment.573 In this
Third FNPRM, the Commission
tentatively concludes not to impose a
mandatory wholesale or open access
condition on the D Block licensee.
Comments in support of mandatory
wholesale and open access provisions
have not established the impact that
these provisions would have on the
public safety environment and the goals
of the Public/Private Partnership. The
Commission reaffirms that the D Block
licensee has the flexibility to provide
wholesale or retail services or other
types of access to its network to comply
with the Commission’s rules and the
NSA.574 The Commission believes that
this flexibility improves the viability of
the Public/Private Partnership, serves
the interests of public safety, and is
supported by the record.
309. With respect to subscriber
equipment and applications offered to
public safety, the Commission proposes
to retain the flexibility afforded to
public safety subscribers in the Second
Report and Order. Specifically, the
Commission proposes to retain the
rights of the Public Safety Broadband
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568 CTIA
Reply Comments at 8–9.
Wireless Reply Comments at 19 n.43.
570 Motorola Comments at 7.
571 Second Report and Order, 22 FCC Rcd at
15476–77, 15478 paras. 545, 549.
572 Id., 22 FCC Rcd at 15476–77 para. 545.
573 Id. (citing NPSTC 700 MHZ Further Notice
Reply Comments at 8 –9).
574 Applicable rules include, but are not limited,
provisions regarding leasing in Subparts Q and X
of Part 1 of the Commission’s rules.
569 Verizon
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Licensee to determine the public safety
equipment and applications that would
be used on the network. The
Commission also proposes to retain the
rights of public safety entities to
purchase their own subscriber
equipment and applications from any
vendor they choose, provided that the
equipment and applications they
purchase are consistent with reasonable
network management requirements and
approved by the Public Safety
Broadband Licensee. The Commission
seeks comment on these proposals.
11. Other Rules and Conditions
310. In the Second FNPRM, the
Commission sought comment generally
on whether, aside from the subjects
specifically that the Commission
specifically discussed, the Commission
should modify any other aspects of the
rules or conditions for the 700 MHz
Public/Private Partnership. The
Commission tentatively concludes that,
aside from the specific changes the
Commission has proposed in this Third
FNPRM,575 the Commission should
retain the existing rules governing the
700 MHz Public/Private Partnership
largely without modification.
C. Public Safety Issues
1. Eligible Users of the Public Safety
Broadband Spectrum
311. Background. Section 337(a)(1) of
the Communications Act requires the
Commission to allocate 24 megahertz of
spectrum between 746 MHz and 806
MHz for ‘‘public safety services.’’ 576
Section 337(f)(1) of the Act defines
‘‘public safety services’’ as follows:
(f) Definitions—For purposes of this
section:
(1) Public Safety Services—The term
‘‘public safety services’’ means
services—
(A) The sole or principal purpose of
which is to protect the safety of life,
health, or property;
(B) That are provided—
(i) By State or local government
entities; or
(ii) By nongovernmental organizations
that are authorized by a governmental
entity whose primary mission is the
provision of such services; and
(C) That are not made commercially
available to the public by the
provider.577
In establishing license eligibility rules
for the 700 MHz public safety band in
Section 90.523 of the Commission’s
575 The specific rule changes the Commission
proposes are included herein.
576 47 U.S.C. 337(a)(1).
577 47 U.S.C. 337(f).
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rules the Commission sought to mirror
these eligibility requirements.578
312. Section 90.523(e) includes
specific eligibility provisions applicable
to the Public Safety Broadband
Licensee.579 Like the narrowband
license eligibility provisions set forth in
Sections 90.523(a)–(d),580 the
Commission intended the provisions of
Section 90.523(e) to ensure that the use
of the 700 MHz public safety broadband
spectrum, under the auspices of the
Public Safety Broadband Licensee, be
consistent with the statutory definition
of ‘‘public safety services’’ in Section
337(f)(1)—both to ensure that the band
remained allocated to such services, as
required by Section 337(a)(1)—as well
as to focus the Public Safety Broadband
Licensee exclusively upon the needs of
public safety entities that stand to
benefit from the interoperable
broadband network.581
313. In the Second FNPRM, the
Commission identified certain aspects
of Section 90.523 that may need
clarification. First, the Commission
identified two elements of the statutory
definition of ‘‘public safety services’’
that the eligibility rules that could be
construed as not applying explicitly
enough to the Public Safety Broadband
Licensee: (1) The Section 337(f)(1)(A)
element that requires that the ‘‘sole or
principal purpose * * * is to protect
the safety of life, health, or property;’’
and (2) the Section 337(f)(1)(C) element
that bars such services from being
‘‘made commercially available to the
public by the provider.’’ 582 Second, the
Commission observed that there may be
some ambiguity as to the applicability of
the narrowband eligibility provisions in
Sections 90.953(a)–(d) to the Public
Safety Broadband Licensee.583
Accordingly, the Commission sought
578 47
CFR 90.523.
CFR 90.523(e).
580 47 CFR 90.523(a)–(d).
581 Second Report and Order, 22 FCC Rcd at
15421 para. 373. Specifically, the Commission
required that the Public Safety Broadband Licensee
satisfy the following eligibility criteria: (1) No
commercial interest may be held in this licensee,
and no commercial interest may participate in the
management of the licensee; (2) the licensee must
be a non-profit organization; (3) the licensee must
be as broadly representative of the public safety
radio user community as possible, including the
various levels (e.g., state, local, county) and types
(e.g., police, fire, rescue) of public safety entities;
and (4) to ensure that the Public Safety Broadband
Licensee is qualified to provide public safety
services, an organization applying for the Public
Safety Broadband License was required to submit
written certifications from a total of at least ten
geographically diverse state and local governmental
entities, with at least one certification from a state
government entity and one from a local government
entity. See 47 CFR 90.523(e).
582 Second FNPRM, 23 FCC Rcd at 8060 para. 28.
583 Second FNPRM, 23 FCC Rcd at 8060 para. 28.
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comment as to whether the Commission
should make minor amendments to
Section 90.523 to: (a) Clarify that the
services provided by the Public Safety
Broadband Licensee must conform to all
the elements of the statutory definition
of ‘‘public safety services;’’ and (b)
clearly delineate the differences and
overlap in the respective eligibility
requirements of the narrowband
licensees and the Public Safety
Broadband Licensee.584
314. As a corollary to examining
whether the services provided by the
Public Safety Broadband Licensee must
conform to all the elements of the
statutory definition of ‘‘public safety
services,’’ the Commission also
examined whether, under Section 337 of
the Act and in furtherance of the
policies that led to the creation of the
Public Safety Broadband Licensee, the
eligible users of the public safety
broadband network that are represented
by the Public Safety Broadband
Licensee should be restricted to entities
that provide ‘‘public safety services,’’ as
defined in Section 337 of the Act.585
Specifically, the Commission observed
that the question of whether the Public
Safety Broadband Licensee’s service
qualifies as a ‘‘public safety service’’
under Section 337(f)(1) of the Act
depends in part on the nature of the
spectrum use by the entities to which it
grants access to the shared broadband
network.586
315. The Commission further
observed that to the extent that these
entities are public safety entities that are
accessing the shared network to provide
themselves with communications
services in furtherance of their mission
to protect the safety of life, health or
property, the Public Safety Broadband
Licensee’s services related to the public
safety broadband spectrum would
conform to the statutory definition of
‘‘public safety services’’ and would
comport with the Commission’s
obligation under Section 337(a)(1) of the
Act to allocate a certain amount of
spectrum to such services.587 Under this
interpretation, only entities providing
public safety services, as defined in the
Act, would be eligible to use the public
safety spectrum of the shared network of
the 700 MHz Public/Private Partnership
on a priority basis, pursuant to the
representation of the Public Safety
Broadband Licensee.
316. In arriving at this interpretation,
the Commission observed that, under
584 Second
585 Second
FNPRM, 23 FCC Rcd at 8060 para. 28.
FNPRM, 23 FCC Rcd at 8060–61 para.
29.
586 Second
587 Second
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FNPRM, 23 FCC Rcd at 8061 para. 30.
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57805
the statutory definition, a service might
be considered a ‘‘public safety service’’
even if its purpose is not solely for
protecting the safety of life, health or
property, so long as this remains its
‘‘principal’’ purpose.588 Taken a step
further, the service provided by the
Public Safety Broadband Licensee—
providing public safety entities access to
the spectrum for safety-of-life/health/
property communications operations—
could conceivably include the provision
of spectrum access to public safety
entities for uses that do not principally
involve the protection of life, health or
property, provided that the principal
purpose of the Public Safety Broadband
Licensee’s services, on the whole, is to
protect the safety of life, health or
property.589 The Commission further
observed, moreover, that such a literal
reading of the statute could permit the
Public Safety Broadband Licensee to
provide spectrum access to a small
number of entities having little or no
connection to public safety whatsoever,
and potentially result in entire pockets
within its nationwide service area
served only by such non-public safety
entities.590
317. Because such a result would
appear inconsistent with the spirit of
Section 337(f)(1)(A) of the Act, the
Commission sought comment on
whether, and to what degree, the Public
Safety Broadband Licensee would be
statutorily precluded by that subsection
from representing and allowing any
entity to use the network for services
that are not principally for public safety
purposes.591 The Commission also
sought comment on whether there are
other grounds—specifically, the
authorization requirement of Section
337(f)(1)(B)(ii) of the Act and/or public
interest reasons—for prohibiting the
Public Safety Broadband Licensee from
providing network access to non-public
safety entities or permitting public
safety entities that it represents to use
the network for services that do not
have as their principal purpose the
protection of the safety of life, heath or
property, and instead requiring such
non-permitted users, including critical
infrastructure industry (CII) users, to be
treated as commercial users who would
obtain access to spectrum only through
588 Second FNPRM, 23 FCC Rcd at 8061 para. 31
(citing 47 U.S.C. 337(f)(1)(A)).
589 Second FNPRM, 23 FCC Rcd at 8061 para. 31.
590 Second FNPRM, 23 FCC Rcd at 8061–62 para.
32.
591 Second FNPRM, 23 FCC Rcd at 8061–62 para.
32.
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commercial services provided solely by
the D Block licensee.592
318. Comments. The Commission did
not receive any comments with respect
to whether the Commission should
make minor amendments to Section
90.523 of the Commission’s rules to: (a)
Clarify that the services provided
through the Public Safety Broadband
Licensee must conform to all the
elements of the statutory definition of
‘‘public safety services;’’ and (b) clearly
delineate the differences and overlap in
the respective eligibility requirements of
the narrowband licensees, set forth in
Sections 90.953(a)–(d) of the
Commission’s rules, and the Public
Safety Broadband Licensee, set forth in
Sections 90.953(e) of the Commission’s
rules to eliminate any ambiguity
regarding the applicability of the former
to the latter.
319. The Commission did, however,
receive a number of comments
addressing the question of whether the
Public Safety Broadband Licensee
should be prohibited both from
providing network access to non-public
safety entities (i.e., entities that would
not be eligible to hold licenses under
Section 337 of the Act), and from
allowing the public safety entities that
it represents to use the network for
services that do not have as their
principal purpose the protection of the
safety of life, heath or property. The
National Public Safety
Telecommunications Council (NPSTC),
for example, observed that ‘‘[t]here are
common situations across the country
where restoring critical infrastructure—
gas, electric, water, transportation or
telecommunications—is at least as
important as public safety use.’’ 593 On
that basis, NPSTC argued that ‘‘access
[to the shared network] needs to be
flexible and managed real-time,
allowing the subscribers who are critical
to the operation at hand, whatever and
whomever that might be, use of required
network resources.’’ 594 Under NPSTC’s
approach, access to the shared network
by CII entities (and Federal agencies)
‘‘would be directed to emergency
circumstances and not general use of the
592 Second
FNPRM, 23 FCC Rcd at 8061–62 para.
32.
593 NPSTC
594 NPSTC
Comments at 17.
Comments at 17–18.
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network.’’ 595 Other commenters
expressed similar views.596
320. A few parties, however, argued a
more circumscribed view that eligibility
for access to the shared network through
the Public Safety Broadband Licensee
should be limited to entities that have
as their principal purpose the protection
of safety of life, health or property.
APCO, for example, asserted that ‘‘there
are significant questions as to whether
the Communications Act would allow
the PSBL to offer service on public
safety spectrum to entities not eligible
for public safety spectrum under
Section 337 of the Act.’’ 597 Accordingly,
APCO suggested that the Commission
‘‘should require that the D Block
licensee provide CII entities with
priority access to the commercial
portion of the network (secondary,
however, to public safety where
relevant) consistent with current CII/
wireless carrier agreements.’’ 598 The
National Regional Planning Council
(NRPC) asserted that the ‘‘principal
purpose of the [shared network]
spectrum should remain for public
safety use [and] the PSBL should
provide network access only to public
safety entities that have as their
principal purpose the protection of
safety of life, health or property.’’ 599
321. Discussion. As a preliminary
matter, the Commission tentatively
concludes that the Commission should
revise Section 90.523 of the
Commission’s rules to: (a) Clarify that
the services provided through the Public
Safety Broadband Licensee must
conform to all the elements of the
statutory definition of ‘‘public safety
595 NPSTC Comments at 18. NPSTC recommends
that the Commission ‘‘parallel the core concept of
its rules contained in section 90.523. That provision
recognizes that critical infrastructure entities that
are state or local government agencies may be
licensed. It would allow access for Non Government
Organizations (NGOs) that have the support of the
relevant local or state government agency and the
PSBL.’’ Id.
596 See, e.g., AASHTO Comments at 12; PSST
Comments at 21; NATOA et. al. Comments at 13;
TDC Comments at 2–3; International Municipal
Signal Association, International Association of Fire
Chiefs, Inc, Congressional Fire Services Institute,
and Forestry Conservation Communications
Association Joint Comments at 10; American
Hospital Association Comments at 3; Association of
Emergency Medical Technicians Comments at 4;
Mayo Clinic Comments at 4; City and County of San
Francisco Comments at 4 n.3; TeleCommUnity
Comments at 10; Ericsson Inc. Comments at 5;
District of Columbia Comments at 3; Intelligent
Transportation Society of America Reply Comments
at 3. Joe Hanna Reply Comments at 4; American
Petroleum Institute Reply Comments at 5–7.
597 Association of Public-Safety Communications
Officials-International, Inc. Comments at 8.
598 Association of Public-Safety Communications
Officials-International, Inc. Comments at 9.
599 National Regional Planning Council
Comments at 6. See also International Association
of Fire Fighters Comments at 5.
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services;’’ and (b) clearly delineate the
differences and overlap in the respective
eligibility requirements of the
narrowband licensees, set forth in
Sections 90.953(a)–(d), and the Public
Safety Broadband Licensee, set forth at
Section 90.953(e) to eliminate any
ambiguity regarding the applicability of
the former to the latter. The Commission
believes these clarifications would be
accomplished through the rule revisions
the Commission is proposing (discussed
below) to address the issue of eligibility
to access the public safety broadband
network.
322. With respect to the question of
which entities should be eligible to
access the public safety broadband
network through the Public Safety
Broadband Licensee, while the
Commission recognizes and appreciate
the important functions that CII entities
can serve in supporting public safety
entities during the resolution of
emergencies, the Commission
tentatively concludes that both statutory
limitations and policy considerations
preclude CII entities from accessing the
public safety broadband network. The
Commission proposes specific
amendments to Section 90.523 of the
Commission’s rules included in this
document to effect such tentative
conclusion and to effect the general
clarifications discussed above.
323. In arriving at the Commission’s
tentative conclusion, the Commission
necessarily begins with an analysis of
Section 337 of the Act. Section 337(a)(1)
requires the Commission to allocate 24
megahertz of spectrum between 746
MHz and 806 MHz for ‘‘public safety
services.’’ 600 As stated above, the
statutory definition of ‘‘public safety
services,’’ which is set forth in Section
337(f) of the Act, provides as follows:
(f) Definitions—For purposes of this
section:
(1) Public Safety Services—The term
‘‘public safety services’’ means
services—
(A) The sole or principal purpose of
which is to protect the safety of life,
health, or property;
(B) That are provided—
(i) By State or local government
entities; or
(ii) By nongovernmental organizations
that are authorized by a governmental
entity whose primary mission is the
provision of such services; and
(C) That are not made commercially
available to the public by the
provider.601
Section 337(f)(1) specifies, among
other criteria, that the sole or principal
600 47
601 47
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U.S.C. 337(f).
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purpose of the service for which the 700
MHz public safety spectrum is used
must be to protect the safety of life,
health, or property.602 While CII
entities, such as utility companies, may
play an important role on occasion
supporting public safety entities to carry
out their mission of protecting the safety
of life, health, or property, this role is
ancillary to the entities’ principal
purposes, such as providing electricity.
By way of contrast, with respect to
concerns raised by the American
Hospital Association and other health
care representative associations, the
Commission observes that under these
proposed amendments, the sole or
principal purpose of the
communications needs of hospitals and
other health care facilities as well as
ambulance and Emergency Medical
Services involved in the provision of
emergency medical care, are innately to
protect the safety of life, health, or
property.603 For example, the
Commission envisions that in providing
health care services to the sick or
injured, responding to accident scenes,
or in addressing public health
emergencies such as pandemics or
poisonous gas exposure, hospitals,
health care facilities, and emergency
medical service departments would be
eligible users of the 700 MHz public
safety spectrum.
324. Because CII entities would not be
eligible to access the 700 MHz public
safety spectrum under Section 337, they
also would not be eligible to gain access
to this spectrum through the Public
Safety Broadband Licensee. Even if
authorized by a governmental entity
pursuant to Section 337(f)(1)(B)(ii) of
the Act, since the sole or principal
purpose of the communications of CII
entities are not to protect the safety of
life, health or property, granting such
access to otherwise ineligible CII
entities through a bona fide eligible
entity merely bypasses the separate
requirement contained in Section
337(f)(1)(A) of the Act. Permitting the
Public Safety Broadband Licensee to
provide public safety broadband
spectrum access to non-public safety
entities also would exceed the carefully
prescribed scope of its representation.
Specifically, the eligibility criteria for
the Public Safety Broadband Licensee
requires, among other things, that such
licensee be ‘‘as broadly representative of
the public safety radio user community
as possible, including the various levels
(e.g., state, local, county) and types (e.g.,
602 47
U.S.C. 337(f)(1)(A).
603 See American Hospital Association Comments
at 3; Association of Emergency Medical Technicians
Comments at 4; Mayo Clinic Comments at 4.
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police, fire, rescue) of public safety
entities,’’ and be certified by at least ten
geographically diverse state and local
governmental entities whose ‘‘primary
mission is the provision of public safety
services.’’ 604
325. The Commission also believes
that permitting CII entities to access the
700 MHz public safety spectrum
through the Public Safety Broadband
Licensee—and thereby access this
spectrum on a priority basis—would not
be in the public interest. As the
Commission observed in the Second
FNPRM, given the limited amount of
spectrum available to the public safety
community, and particularly with
respect to spectrum allocated for
interoperability purposes, there is no
margin for awarding priority access to
entities that do not have as their sole or
principal purpose the protection of the
safety of life, health, or property.605
Permitting CII entities to access the 700
MHz public safety broadband spectrum
would significantly dilute the band’s
available capacity, because the size of
the CII community is relatively much
larger than the size of the public safety
community itself. The Commission thus
believes the public interest would be
best served by maximizing broadband
spectrum capacity for bona fide public
safety entities, and maximizing the
growth potential for new broadband
applications geared towards the needs
of the public safety community.606 In
any event, the Commission observes
that CII entities may access the shared
broadband network on a commercial
basis as customers of the D Block
licensee(s).
326. To implement the Commission’s
tentative conclusions on the eligibility
issues, the Commission is proposing
revisions to Section 90.523 of the
604 47 CFR 90.523(e). The scope of the Public
Safety Broadband Licensee’s representation also is
limited by the requirements pertaining to its
Articles of Incorporation, including that they
incorporate among its purposes that the Public
Safety Broadband Licensee ‘‘is to represent the
interests of all public safety entities to ensure that
their broadband spectrum needs are met in a
balanced, fair, and efficient manner, in the interests
of best promoting the protection of life and property
of the American public.’’ Second Report and Order
at para. 375.
605 Second FNPRM, 23 FCC Rcd at 8061–62 para.
32.
606 For these same statutory-based and public
interest reasons, the Commission do not believe
such concerns would be alleviated by permitting CII
entities access to the 700 MHz public safety
broadband spectrum only on a limited, case-bycase, emergency basis, as administered locally or
through the Public Safety Broadband Licensee. See,
e.g., The National Association of
Telecommunications Officers and Advisors
(NATOA), the National Association of Counties
(NACo), the National League of Cities (NLC), and
the U.S. Conference of Mayors (USCM) Joint
Comments at 13.
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57807
Commission’s rules (included in this
document). First, the Commission
proposes to revise the narrowband
eligibility criteria to clarify that
authorizations to deploy and operate
systems in the 769–775 MHz and 799–
805 MHz (narrowband) frequency bands
are limited to systems the sole or
principal use of which is to protect the
safety of life, health, or property, and
which are not used to provide any
service that is made commercially
available by the license holder.607
Second, the Commission proposes to
add a new provision setting forth the
eligibility criteria for entities seeking to
access the public safety broadband
network through the Public Safety
Broadband Licensee, which criteria
incorporates the narrowband eligibility
criteria and requires that the sole or
principal purpose of such entities must
be to protect the safety of life, health, or
property.608 Third, the Commission
proposes revisions to the Public Safety
Broadband Licensee eligibility criteria
to ensure that the services provided
through the Public Safety Broadband
Licensee conform to all the elements of
the statutory definition of ‘‘public safety
services.’’ 609
327. Federal Usage of the Public
Safety Broadband Network. With
respect to whether the Commission
should modify Section 2.103 of the
Commission’s rules to limit Federal
public safety agency use of the public
safety broadband spectrum to situations
where such use is necessary for
coordination of Federal and non-Federal
activities,610 most parties opposed such
a specific limitation. The Association of
Public-Safety Communications
Officials—International, Inc. (APCO),
for example, asserts that it ‘‘supports a
provision that would allow Federal
public safety use of the broadband
network with the concurrence of the
PSBL and local public users in the areas
in which the Federal government
desires to operate on the network.’’ 611
APCO further contends that ‘‘[i]n
general, Federal public safety use
should be encouraged as a means of
improving interoperability in emergency
response activities, but not at the
expense of providing sufficient
607 See
proposed Section 90.523(a)(1), Appendix
A.
608 See
609 See
proposed Section 90.523(b), Appendix A.
proposed Section 90.523(c)(5), Appendix
A.
610 Second
FNPRM, 23 FCC Rcd at 8092 at para.
126.
611 Association of Public-Safety Communications
Officials—International, Inc. Comments at 9.
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spectrum capacity for state and local
governments.’’ 612
328. The Public Safety Spectrum
Trust Corporation argues that ‘‘the FCC
should reaffirm the decision adopted in
the Second R&O, wherein the PSST was
given exclusive authority to approve
Federal usage of the PSBL spectrum, a
determination that will be made on a
case-by-case basis consistent with the
PSST’s responsibility to promote
interoperable public safety
communications.’’ 613 The PSST further
observes that ‘‘Federal users who do not
require priority service on the SWBN
are free to accept normal commercial
service as regular D Block
subscribers.’’ 614
329. Rivada Networks argues,
however, that ‘‘the Commission should
streamline Section 2.103 to allow the
most efficient and effective access of the
public safety 700 MHz spectrum for
Federal agencies that may be called
upon to respond in the event of an
emergency and coordinate with nonFederal State and local agencies.’’ 615
According to Rivada, ‘‘[s]o long as there
is ‘mutual agreement between the
Federal and non-Federal entities’ and
that agreement includes coordination
procedures to protect against
interference, Federal use of this
spectrum should be presumptively
allowed.’’ 616
330. Discussion. The Commission
believes that it should reaffirm the
decision adopted in the Second Report
and Order to grant the PSBL ‘‘exercise
of sole discretion, pursuant to Section
2.103 of the Commission’s rules,
whether to permit Federal public safety
agency use of the public safety
broadband spectrum, with any such use
subject to the terms and conditions of
the NSA.’’ 617 The Commission’s
decision in this regard was based upon
the Commission’s earlier determination
that Section 337 of the Act does not bar
Federal Government public safety
entities from using the 700 MHz band
612 Association of Public-Safety Communications
Officials—International, Inc. Comments at 9. See
also National Public Safety Telecommunications
Council Comments at 18 (‘‘[t]he 700 MHz public
safety broadband network should reflect the much
envisioned objective of interoperability across all
levels of government during an emergency.’’);
National Regional Planning Council Comments at 6
(‘‘All governmental services, including federal and
military, should be eligible.’’).
613 Public Safety Spectrum Trust Corporation
Comments at 18–19. See also National Public Safety
Telecommunications Council Comments at 18;
Ericsson, Inc. Comments at 31.
614 Public Safety Spectrum Trust Corporation
Comments at 19.
615 Rivada Networks Comments at 6.
616 Rivada Networks Comments at 6.
617 See Second Report and Order, 22 FCC Rcd at
15427 para. 383.
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under certain conditions.618
Specifically, the Commission
determined that, while Section 337 of
the Act does not expressly indicate that
Federal government entities should be
eligible, such ‘‘omission simply reflects
the fact that the Commission does not
license Federal stations.’’ 619 The
Commission further observed that
Federal entities, although ineligible for
Commission licensing in the 700 MHz
band, already were eligible to receive
authorization to use the 700 MHz public
safety spectrum in accordance with the
requirements set forth in Section
2.103,620 which the Commission
amended to clarify the permitted
Federal use of this band.621 Key to the
Commission’s determination were its
observations, based on the record then
before it, that Federal entities provide
noncommercial services the sole or
principal purpose of which is to protect
the safety of life, health, or property,
and that allowing Federal entities to
access the 700 MHz band is essential to
promoting interoperability.622
331. The Commission sees no reason
to disturb the Commission’s previous
treatment of Federal use of the 700 MHz
public safety spectrum. The
Commission agrees with APCO that
‘‘federal public safety use should be
encouraged as a means of improving
interoperability in emergency response
activities,’’ 623 and that narrowing the
Commission’s existing rules to permit
Federal use of the 700 MHz band only
for Federal/non-Federal coordination
activities would achieve an opposite
result. The Commission observes that
618 See Second Report and Order, 22 FCC Rcd at
15427 para. 383 n.822 (citing Development of
Operational, Technical and Spectrum Requirements
for Meeting Federal, State and Local Public Safety
Agency Communication Requirements Through the
Year 2010, WT Docket No. 96–86, First Report &
Order and Third Notice of Proposed Rulemaking, 14
FCC Rcd 152, 185 para. 66 (1998); 47 CFR 2.103(b)).
619 Development of Operational, Technical and
Spectrum Requirements for Meeting Federal, State
and Local Public Safety Agency Communication
Requirements Through the Year 2010, WT Docket
No. 96–86, First Report & Order and Third Notice
of Proposed Rulemaking, 14 FCC Rcd 152, 185 para.
66 (1998).
620 See Development of Operational, Technical
and Spectrum Requirements for Meeting Federal,
State and Local Public Safety Agency
Communication Requirements Through the Year
2010, WT Docket No. 96–86, First Report & Order
and Third Notice of Proposed Rulemaking, 14 FCC
Rcd 152, 185–86 paras. 67–68 (1998).
621 See 47 CFR 2.103(b).
622 See Development of Operational, Technical
and Spectrum Requirements for Meeting Federal,
State and Local Public Safety Agency
Communication Requirements Through the Year
2010, WT Docket No. 96–86, First Report & Order
and Third Notice of Proposed Rulemaking, 14 FCC
Rcd 152, 185 para. 65 (1998).
623 Association of Public-Safety Communications
Officials-International, Inc. Comments at 9.
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contrary to PSST’s characterization,
such authority need not necessarily be
exercised only on a case-by-case basis.
To this extent, the Commission agrees
with Rivada that the Public Safety
Broadband Licensee may establish more
broad-reaching agreements with Federal
public safety entities and thus avoid the
need for case-by-case determinations in
appropriate situations.624 Accordingly,
the Commission tentatively concludes
that the Commission will reaffirm its
current rules under which the Public
Safety Broadband Licensee has exercise
of sole discretion, pursuant to Section
2.103 of the Commission’s rules,
whether to permit Federal public safety
agency use of the public safety
broadband spectrum, with any such use
subject to the terms and conditions of
the NSA.
332. Mandatory Usage of the Public
Safety Broadband Network. In the
Second FNPRM the Commission asked
whether eligible public safety users
should be required to subscribe to the
shared broadband network for service,
at reasonable rates, or be subject to some
alternative obligation or condition
promoting public safety network usage
in order to provide greater certainty to
the D Block licensee.625 Among other
things, the Commission asked whether
it should require the purchase of a
minimum number of minutes, and how
such obligation might be imposed;
whether any such obligation should be
conditioned on the availability of
government funding for access; and
whether the Commission should require
public safety users to pay for access
with such money.626
333. The parties addressing these
issues opposed any form of mandatory
usage requirements. NPSTC, for
example, asserted that, ‘‘[s]uch a
mandate would be a historic departure
from the Commission’s role of leaving
such choice to the consumer, public or
private.’’ 627 The International
Association of Fire Fighters asserted
that ‘‘all public safety agencies must be
given the flexibility to choose whether
or not to participate based on their own
unique public safety needs and
obligations.’’ 628 The PSST opposed
imposition of a mandatory use or
minimum public safety usage
requirement on grounds that such
624 See
Rivada Networks Comments at 6.
FNPRM, 23 FCC Rcd at 8063 para. 37.
626 Second FNPRM, 23 FCC Rcd at 8063 para. 37.
627 NPSTC Comments at 15.
628 IAFF Comments at 5. See also NRPC
Comments at 4; RPC 33 Comments at 4; Lencioni
Comments at 1; TeleCommUnity Comments at 11;
Virginia Comments at 7; Verizon Wireless
Comments at 10; RPC 20 Reply Comments at 15–
16.
625 Second
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concept ‘‘is inconsistent with the
PSST’s understanding of the FCC’s
original Public/Private Partnership
arrangement and with the PSST’s belief
that network adoption must be entirely
voluntary.’’ 629
334. The City of Philadelphia added
that, ‘‘[w]here local governments are
required to pay user fees over which
they have no control, they must have
the option of declining participation in
the network where they determine the
fees are unaffordable or local budget
appropriations do not cover them.’’ 630
Moreover, the City of Philadelphia
observed that, ‘‘[m]andating
participation in a national network is
not in the public interest because it
requires local governments to cede
control over service and operations and
to accept terms that may not meet the
specific communications needs of their
public safety agencies.’’ 631 The PSST
commented that, ‘‘[m]andating public
safety use of the network, an option that
the PSST does not support, could have
the effect of disrupting existing business
relationships between commercial
operators and public safety
organizations.’’ 632
335. The National Association of
Telecommunications Officers and
Advisors (NATOA), the National
Association of Counties (NACo), the
National League of Cities (NLC), and the
U.S. Conference of Mayors (NATOA et
al.) argued that ‘‘there should be no
mandatory requirement that public
safety entities use the proposed
network, but there must be a
requirement that provides for
interconnection of existing networks
with the new network.’’ 633
336. Concerning the availability of
government funding for access, the
NRPC, for example, argued that ‘‘[i]f a
local public safety entity elects not to
subscribe to the new network, the
Commission would request the
Commission’s consideration to not
develop regulatory rules that impose
any obligations on the agency based on
the availability of any government grant
monies or any monies, regardless of
origin.’’ 634 Finally, APCO and NPSTC,
629 PSST
Comments at 17–18.
Comments at 6. See also NPSTC
Comments at 15; Lencioni Comments at 1.
631 Philadelphia Comments at 6.
632 PSST Comments at 18. See also TE M/A–COM
Comments at 9.
633 NATOA et al. Comments at 18.
634 NRPC Comments at 4. See also APCO
Comments at 13 (arguing that the Commission lacks
authority to require ‘‘use of the public safety
broadband network [as] a condition of government
funding.’’).
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also questioned the Commission’s legal
authority to impose such a mandate.635
337. Discussion. The Commission
tentatively concludes not to establish
any mandate requiring eligible public
safety users to subscribe to the shared
broadband network for service, or
subject such entities to any other
alternative obligations or conditions
promoting public safety network usage.
Specifically, the Commission is
concerned that establishing usage
mandates would potentially interfere
with local public safety needs and
obligations unique to their
communities, as well as with existing
network investments or business
relationships with other vendors and
service providers. In addition, any
mandatory subscription obligation
would be inconsistent with the
Commission’s continued expectation
that voluntary participation will be
driven by the shared network build
undertaken by the D Block licensee(s),
resulting state-of-the-art broadband
applications, and economies of scale
made possible under the public/private
partnership approach.636
2. Provisions Regarding the Public
Safety Broadband Licensee
a. Non-Profit Status
338. Background. Among other
criteria for eligibility to hold the Public
Safety Broadband License that the
Commission established in the Second
Report and Order, the Commission
provided that no commercial interest
may be held in the Public Safety
Broadband Licensee, that no
commercial interest may participate in
the management of the licensee, and
that the licensee must be a non-profit
organization.637 The Commission also
indicated, however, that, as part of its
administration of public safety access to
the shared wireless broadband network,
the Public Safety Broadband Licensee
might assess ‘‘usage fees to recoup its
expenses and related frequency
coordination duties.’’ 638
339. In the Second FNPRM, the
Commission sought to further examine
the Public Safety Broadband Licensee’s
non-profit status, and issues related to
alternative funding mechanisms,
including excess revenue derived from
any access fees that the Public Safety
Broadband Licensee might charge. With
respect to the requirement that the
Public Safety Broadband Licensee be
organized as a non-profit organization,
in the Second FNPRM, the Commission
sought comment as to whether the
Commission should specify that the
Public Safety Broadband Licensee and
all of its members (in whatever form
they may hold their legal or beneficial
interests in the Public Safety Broadband
Licensee) must be non-profit entities.639
While the Commission acknowledged
that the Public Safety Broadband
Licensee may need to contract with
attorneys, engineers, accountants, and
other similar advisors or service
providers to fulfill its responsibilities to
represent the interests of the public
safety community, the Commission
asked whether the Commission should
restrict the Public Safety Broadband
Licensee’s business relationships preand post-auction with commercial
entities, and if so, what relationships
should and should not be permitted.640
340. The Commission also sought
comment as to whether the Commission
should clarify that the Public Safety
Broadband Licensee may not obtain
debt or equity financing from any
source, unless such source is also a nonprofit entity.641 The Commission asked
whether such a restriction would be
warranted to ensure that the Public
Safety Broadband Licensee is not
unduly influenced by for-profit motives
or outside commercial influences in
carrying out its official functions.642 The
Commission also sought comment on
ways to allow necessary financing while
still ensuring the independence of the
Public Safety Broadband Licensee, such
as whether to allow working capital
financing from commercial banks and
whether to restrict the assets of the
Public Safety Broadband Licensee that
can be pledged as security for such
loans, and/or whether there are other
types of loans or alternative funding
sources that the Commission should
allow the Public Safety Broadband
Licensee to employ.643
341. As a separate line of inquiry, the
Commission sought comment in the
Second FNPRM on the best way to fund
the Public Safety Broadband Licensee’s
operations. The Commission asked, for
example, whether the D Block licensee
should be required to pay the Public
Safety Broadband Licensee’s
administrative costs and, if so, whether
639 Second
635 See
APCO Comments at 13; NPSTC Comments
at 15.
636 See, e.g., Second Report and Order, 22 FCC
Rcd at 15431 para. 396.
637 See Second Report and Order, 22 FCC Rcd at
15421 para. 421.
638 Id. at 15426 para. 383.
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57809
FNPRM, 23 FCC Rcd at 8064 para. 40.
FNPRM, 23 FCC Rcd at 8064 para. 40.
641 Second FNPRM, 23 FCC Rcd at 8064–65 para.
41.
642 Second FNPRM, 23 FCC Rcd at 8064–65 para.
41.
643 Second FNPRM, 23 FCC Rcd at 8064–65 para.
41.
640 Second
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such obligation should be capped.644
Assuming government-allocated
funding were available, the Commission
asked whether such funding
mechanisms would be the best solution
for funding the Public Safety Broadband
Licensee.645 The Commission further
asked whether the Commission has legal
authority to support the Public Safety
Broadband Licensee’s operational
expenses through the Universal Service
Fund 646 or Telecommunications
Development Fund,647 and whether
such approaches would be
appropriate.648
342. The Commission also sought
comment on whether any excess
revenue generated by the fees or other
sources of financing obtained by the
Public Safety Broadband Licensee from
non-profit entities should be permitted
and, if so, how they should be used.649
The Commission asked, for example,
whether the Public Safety Broadband
Licensee should be permitted to hold a
certain amount of excess income as a
reserve against possible future budget
shortfalls or whether such excess
income should instead be used for the
direct benefit of the public safety users
of the network, such as for the purchase
of handheld devices.650 Finally, the
Commission sought comment on
whether the Public Safety Broadband
Licensee may legitimately incur certain
reasonable and customary expenses
incurred by a business, consistent with
the constitution of the Public Safety
Broadband Licensee and the nature of
its obligations as established by the
Commission.651
343. Comments. The Commission
received comments on most of the
issues raised in the Second FNPRM, as
broken out below.
organization.’’ 652 AT&T and others
asserted that the Commission should
ensure ‘‘that the PSBL must be a
nonprofit entity that will use the
network solely for public safety
purposes.’’ 653 TeleCommUnity argued
that ‘‘in addition to the public policy
argument that favors the requirement
that the [PSBL] be a non-profit
organization, there could be an
argument that Section 337 of the Act
requires that the Licensee be so.’’ 654
345. Discussion. The Commission
agrees with commenters who argue that
the Public Safety Broadband Licensee
should remain a non-profit entity and
see no reason at this time to alter the
non-profit status of the Public Safety
Broadband Licensee. As discussed in
the following paragraphs and elsewhere
in this Third FNPRM, the Commission
is proposing significant steps to insulate
the Public Safety Broadband Licensee
from undue commercial influence, and
additional reporting and auditing
requirements to provide greater
oversight of the Public Safety
Broadband Licensee’s activities. The
Commission believes these changes
should further clarify the non-profit
requirement of the Public Safety
Broadband Licensee.
FNPRM, 23 FCC Rcd at 8065 para. 42.
FNPRM, 23 FCC Rcd at 8065 at para.
(ii) Restrictions on PSBL Business
Relationships
346. With respect to the question of
restricting the Public Safety Broadband
Licensee’s business relationships preand post-auction with commercial
entities generally, the record reflects
mixed views. The PSST asserted that
‘‘the current restrictions regarding its
agent/advisor relationships are more
than adequate to prevent improper
commercial influence, and the FCC
should not place additional restrictions
on the PSST’s business relationships
and its agent/advisor relationships.’’ 655
Instead, the PSST argued, ‘‘the
Commission should provide greater
clarity regarding its restriction on
‘commercial interests’ participating in
management of the license.’’ 656 The
PSST observed that the current rules
governing the PSBL ‘‘allow for
arrangements with third parties to assist
with the management or operation of
the public safety-side of the network,’’
which arrangements the PSST asserted
‘‘are invaluable for a variety of reasons,
including access to expertise and
e.g., 47 U.S.C. 254(c)(1), (h).
e.g., 47 U.S.C. 614.
648 Second FNPRM, 23 FCC Rcd at 8065 para. 43.
649 Second FNPRM, 23 FCC Rcd at 8065–66 para.
44.
650 Second FNPRM, 23 FCC Rcd at 8065–66 para.
44.
651 Second FNPRM, 23 FCC Rcd at 8066 para. 45.
652 NATOA Comments at 14–15 (internal footnote
omitted).
653 AT&T Comments at 19, 21. See also Eads
Comments at 1; Lencioni Comments at 2;
Philadelphia Comments at 5.
654 TeleCommUnity Comments at 11.
655 PSST Comments at 49.
656 PSST Comments at 49.
(i) Clarifying the Public Safety
Broadband Licensee’s Non-Profit Status
344. Only a few commenters
addressed the question of clarifying the
Public Safety Broadband Licensee’s
non-profit status. NATOA endorsed
requirements that ‘‘no commercial
interest may be held in the Public Safety
Broadband Licensee, that no
commercial interest may participate in
the management of the licensee, and
that the licensee must be a non-profit
644 Second
645 Second
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42.
646 See,
647 See,
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funding, in assisting the PSST to do its
job effectively.’’ 657
347. The PSST further indicated that
while ‘‘there have been abuses in the
past involving impermissible
relationships between licensees and
third parties that would cause the FCC
to adopt [ ] prophylactic measures,’’ it
is also important ‘‘that the FCC not so
restrict the PSBL in its ability to
contract for needed services that it is
prevented from fulfilling the very
functions that the FCC has determined
need to be undertaken on behalf of
public safety.’’ 658 In this regard, the
PSST added that it ‘‘has a strong
preference for outsourcing services to
others where practical and appropriate,
thereby avoiding the need for a large
internal staff with associated employer
obligations.’’ 659 The PSST further
argued that ‘‘provision of management
services or other types of support that
are consistent with [the] Intermountain
Microwave or Motorola [standards for de
jure and de facto control] and would not
involve prohibited economic interests
should be permitted under ‘incentivecompatible’ standards.’’ 660 In addition,
the PSST argued that ‘‘any new
‘incentive-compatible’ rules must not
unduly restrict the PSST’s ability to
obtain funding, so long as there is no
commercial interest participating in
management of the licensee.’’ 661
348. Finally, the PSST states that its
‘‘engagement of Cyren Call is consistent
with those FCC requirements.’’ 662 The
PSST explained that ‘‘[b]ecause it had
no governmental or other funding or
assets to serve as collateral for a
commercial loan, [it] obtained a deferral
from Cyren Call of amounts due, and
even obtained an advance loan from
Cyren Call that reflects arm’s-length,
normal commercial terms.’’ 663 The
PSST asserts, however, that ‘‘Cyren Call
has no management relationship with or
management role within the PSST, has
no legal or beneficial interest in the
PSST, and does not participate in the
PSST’s management.’’ 664 The PSST
further asserts that ‘‘[t]here are no
conditions, covenants or other features
of Cyren Call’s service agreement with
or loan to the PSST that would allow
657 PSST
Comments at 49.
Comments at 49.
659 PSST Comments at 50.
660 PSST Comments at 50 (citing Intermountain
Microwave, 12 FCC 2d 559 (1963); Applications of
Motorola, Inc. for 800 MHz Specialized Mobile
Radio Trunked Systems, File Nos. 507505 et al.,
Order (issued July 30, 1985) (Private Radio
Bureau)).
661 PSST Comments at 50.
662 PSST Comments at 50–51.
663 PSST Comments at 51.
664 PSST Comments at 51.
658 PSST
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Cyren Call to influence the PSST’s
policy or management
determinations.’’ 665 Cyren Call stated
that its arrangements with the PSST did
not provide it ‘‘with any measure of
control or undue influence over the
PSST’s activities or its decisionmaking
process.’’ 666
349. NPSTC asserted that the
‘‘experience and expertise in deploying
and operating wireless communications
is a narrow field’’ and, thus, ‘‘the PSBL
should have the ability to select its
advisors to discharge its duties
effectively.’’ 667 APCO, however, noted
that ‘‘the Commission should require
that the PSBL adopt strict conflict of
interest requirements that include
prohibiting its advisors from engaging in
business activities resulting from the
advice provided to the PSBL [and] from
establishing business relationships with
equipment vendors, service providers,
and others with a financial interest in
the decisions of the PSBL.’’ 668 Further,
as explained more fully below, some
commenters expressed concerns
regarding the propriety of permitting the
PSBL to be funded by any of its forprofit advisors.
350. Discussion. The Commission
agrees with APCO that the Commission
should subject the Public Safety
Broadband Licensee and its advisors,
agents, and managers to strict conflict of
interest requirements. The Commission
believes safeguards should be
implemented to ensure that no entity is
able to influence the Public Safety
Broadband Licensee’s pre-auction
activities in a manner that might benefit
that entity’s, or a related entity’s, plans
to participate in the upcoming D Block
auction, or to gain any advantage as
compared to other bidders by virtue of
information obtained from the Public
Safety Broadband Licensee during the
course of its relationship with the
Public Safety Broadband Licensee.
Thus, the Commission tentatively
concludes that the Commission should
adopt conflict of interest requirements
making entities that are serving as
advisors, agents, or managers (or their
related entities, including affiliates and
those controlled by any officer or
director of such an entity) of the PSBL
ineligible to become a D Block licensee
unless such an applicant completely
severs its business relationship with the
Public Safety Broadband Licensee no
later than 30 days following the release
date of an order adopting final rules in
665 PSST
Comments at 51.
Call Reply Comments at 6.
667 NPSTC Comments at 21. See also Hanna Reply
Comments at 2; NASEMSO Reply Comments at 2.
668 APCO Comments at 17.
666 Cyren
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this proceeding.669 For purposes of this
eligibility rule, the Commission
proposes to define the terms officer,
director, and affiliate in the same
manner as those terms are currently
defined in Section 1.2110(c) of the
Commission’s rules, which govern
competitive bidding, relating to
designated entity eligibility because the
Commission has found those definitions
effective when assessing relationships
among parties related to an applicant.670
The Commission seeks comment on this
tentative conclusion and proposed rule.
351. The Commission also tentatively
concludes that the Commission should
adopt conflict of interest requirements
requiring entities that are serving as
advisors, agents, or managers (or their
related entities, including affiliates and
those controlled by any officer or
director of such an entity) of the PSBL
from establishing business relationships
or otherwise being affiliated with, or
holding a controlling interest in,
equipment vendors, service providers,
or other entities that have a direct
financial interest in the decisions of the
PSBL.671 These requirements would
apply to both pre-auction and postauction activities. The Commission
seeks comment on this tentative
conclusion and proposed rule.
352. The Commission does not
believe that the regulations the
Commission proposes today will
interfere with the Public Safety
Broadband Licensee’s ability to
discharge its duties effectively. The
Commission also considers it necessary
to implement regulations in order to
prevent impropriety and/or the
appearance of impropriety in the Public
Safety Broadband Licensee’s discharge
of its duties. The Commission agree
with the PSST on the necessity of
avoiding regulations that overly restrict
the Public Safety Broadband Licensee’s
ability to engage in necessary
transactions with third parties. The
Commission believes that the
requirements the Commission propose
here strike the appropriate balance
between providing the Public Safety
Broadband Licensee with the flexibility
it requires to utilize expert advisors,
agents, and managers, and to make
necessary contracts with third parties,
while ensuring that the Public Safety
669 In this regard, the Commission notes that
Cyren Call currently has an outstanding loan
extended to the PSST. The Commission seeks
comment on whether Cyren Call should be allowed
to remain a creditor of the PSST if it wishes to be
eligible to become a D Block licensee.
670 See 47 CFR 1.2110(c).
671 For purposes of defining ‘‘affiliated’’ and
‘‘controlling interest,’’ the Commission propose to
use the definitions contained at 47 CFR 1.2110(c).
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57811
Broadband Licensee’s decisions are
insulated from potential undue
influences.
(iii) Funding of the PSBL Through the
D Block Licensee
353. With respect to funding the PSBL
through the D Block licensee, there was
support for such action, in various
forms, including via an upfront payment
as well as through recurring payments,
such as in the form of a spectrum lease
fee. The PSST stated that, as a nonprofit, tax-exempt organization subject
to IRS rules, the PSST ‘‘will need to
charge usage fees to public safety users,
and it will need to obtain a lease
payment from the D Block licensee.’’ 672
The PSST added that ‘‘[b]ecause the
bulk of the spectrum likely will be used
by the D Block licensee to provide
services from which it expects to realize
a profit, the PSST believes it logically
should obtain most of its funding from
the lease payment.’’ 673 The PSST,
however, acknowledged that ‘‘there
must be an appropriate balance of
public safety fees paid for SWBN usage
and a D Block spectrum lease payment,’’
which the PSST argued should be
evaluated, along with related issues, and
addressed in the NSA.674
354. APCO asserted that, lacking
conventional forms of security, it will be
difficult for the PSBL to obtain debt
financing and, therefore, an FCC rule
provision ‘‘that a specific dollar amount
must be made available by the D Block
licensee to the PSBL to pay back loans
obtained from financial institutions to
provide operational funds’’ would be
appropriate.675 APCO further suggested
‘‘requiring the D Block licensee to
establish a trust fund with a specified
dollar amount that the PSBL would be
allowed to draw from and pay its
operating expenses * * * provided
there is a clearly established and
supported operating budget.’’ 676 APCO
stated that the Commission should
continue to require that the D-Block
winner pay a spectrum lease fee to the
Public Safety Broadband Licensee as
part of the NSA, but asked the
Commission to provide ‘‘some further
definition * * * to provide auction
participants with greater certainty,’’ and
also stated that a ‘‘fee cap may also be
appropriate.’’ 677
672 PSST
Comments at 23–24.
Comments at 23–24.
674 PSST Comments at 24.
675 APCO Comments at 18.
676 APCO Comments at 18.
677 APCO Comments at 18. However, APCO
warned against the D-Block winner directly paying
the PSBL’s expenses ‘‘as that would create potential
conflicts of interest.’’ Id.
673 PSST
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355. The NRPC stated that the ‘‘D
Block licensee should be required to pay
all costs identified as necessary with
regard to the [PSBL’s] administrative
costs.’’ 678 In the context of its revised
plan for implementing a shared
broadband network, Televate proposed
that the ‘‘D Block winner provides
billing services to the public safety
community and collects a service fee,
per line, to fund PSST baseline
operations.’’ 679
356. Both the PSST and APCO
asserted that the PSBL should be
allowed to obtain a lease payment from
the D Block licensee to cover the PSBL’s
operational funding.680 NENA stated
that ‘‘in the absence of government
funding for the public safety broadband
licensee, the licensee must be permitted
to generate revenues to ensure its
viability.’’ 681 AT&T asserted that the
‘‘Commission must promulgate
guidelines that address the spectrum
usage fees the PSBL may charge
commercial partners for access to 700
MHz public safety broadband
spectrum,’’ and these guidelines
‘‘should clarify that any lease
agreements be negotiated using
commercial practices for cost recovery
for the PSBL.’’ 682 AT&T urged that
these guidelines ‘‘address how charges
for network usage and spectrum access
will be structured.’’ 683
357. With respect to excess revenues,
the PSST stated that ‘‘there would be
nothing improper in the PSST
undertaking an activity that might
generate revenue that exceeded its
expenses, provide the activity was in
furtherance of public safety
interests.’’ 684 APCO suggested that ‘‘all
funds generated through spectrum lease
fees in excess of those deemed
appropriate to cover the operating
expenses of the PSBL be held in trust
with a not-for-profit foundation [from
which] public safety users have the
ability to apply for grant funding * * *
to be used to cover the cost of
equipment, devices, and any operating
fees associated with the use of the
nationwide broadband network.’’ 685
APCO also asked the Commission not to
‘‘impose any arbitrary restrictions on
[any] excess revenues * * * of the
678 NRPC
Comments at 5.
Comments at 13.
680 See PSST Comments at 23–24; APCO
Comments at 18.
681 NENA Comments at 4–5.
682 AT&T Comments at 19.
683 AT&T Comments at 19. AT&T argued that the
lack of this information ‘‘was a factor cited as
contributing to the failed D Block auction.’’ Id.
684 PSST Comments at 22.
685 APCO Comments at 18–19.
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679 Televate
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PSBL.’’ 686 APCO did, however, indicate
support for Commission oversight of the
PSBL’s use of any excess revenues.687
Region 33 states that any excess
revenues should ‘‘be used to offset
operating expenses with the remainder
going toward infrastructure
improvements.’’ 688 Region 33 also adds
‘‘limiting the amount of time excess
funds can be retained’’ would allow use
of excess income as a reserve against
possible future budget shortfalls, but
also provide funding for ‘‘improvements
to infrastructure or general rate
reductions for users.’’ 689
358. Discussion. The Commission
agrees with commenters that it is
reasonable for the D Block licensee(s) to
cover the Public Safety Broadband
Licensee’s administrative and operating
expenses. The Public Safety Broadband
Licensee’s non-profit status as discussed
above and the Commission’s related
concerns that no entangling financial
relationships compromise its core
mission of representing the public safety
community point to establishing a direct
funding mechanism between the D
Block licensee(s) and the Public Safety
Broadband Licensee. Further, the
Commission finds merit in ensuring that
the administrative and operating
expenses of the Public Safety Broadband
Licensee are finely tuned to its core
mission and fully transparent to key
stakeholders. Thus, the Commission
tentatively concludes that the Public
Safety Broadband Licensee shall
establish an annual budget and submit
this budget to the Chief, WTB and Chief,
PSHSB, on delegated authority, for
approval. The proposed annual budget
to be submitted by the Public Safety
Broadband Licensee would enable the
Commission to ensure that the Public
Safety Broadband Licensee is acting in
a fiscally responsible manner and not
engaging in activities that exceed the
scope of its prescribed roles and
responsibilities. The Public Safety
Broadband Licensee already is required
to submit a full financial accounting on
a quarterly basis,690 which helps serve
the same purpose. As an additional
measure, the PSBL also would need to
have an annual audit conducted by an
independent auditor. In addition, the
Commission is proposing to provide
that the Commission reserves the right,
as delegated to the Chief, PSHSB, to
request an audit of the Public Safety
686 APCO
Comments at 19.
Comments at 19.
688 Region 33 Comments at 6.
689 Region 33 Comments at 6.
690 See 47 CFR 90.528(g).
687 APCO
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Broadband Licensee’s expenses at any
time.
359. With respect to the mechanism of
funding of the Public Safety Broadband
Licensee, the Commission tentatively
concludes that the nationwide D Block
licensee or, if the D Block is licensed on
a regional basis, each regional D Block
licensee, will make an annual payment
to the Public Safety Broadband Licensee
of, in the aggregate, the sum total of $5
million per year. These payments would
be in consideration for the D Block
licensee(s)’ leased access on a secondary
basis to the public safety broadband
spectrum. In the event that the D Block
is licensed on a regional basis, the
Commission will specify after the close
of the auction the annual payments
required for each license won at
auction, such that the total $5 million in
annual payments to the Public Safety
Broadband Licensee is apportioned on a
per region basis, based upon total pops
per region. Because these figures are
tied to the regional D Block licenses
actually won at auction, the
Commission may adjust them to account
for any regional D Block licenses that
may go unsold in the next D Block
auction but which are successfully
reauctioned on a subsequent date. The
annual payment funds will be placed
into an escrow account managed by an
unaffiliated third party, such as a major
commercial financial institution, for the
benefit of the Public Safety Broadband
Licensee. The Commission will require
the Public Safety Broadband Licensee to
seek approval of its selected escrow
account manager from the Chief,
PSHSB. The Public Safety Broadband
Licensee would draw funds on this
account to cover its annual operating
and administrative expenses in a
manner consistent with its submitted
annual budget for that fiscal year.691
The entirety of the Public Safety
Broadband Licensee’s annual operating
budget shall be based on these annual
payments. The Commission seeks
comment on these tentative conclusions
and proposals, including when the D
Block licensee(s) should make their
initial payment to the Public Safety
Broadband Licensee. Specifically,
comment is requested on whether the D
Block licensee(s) should make funding
available prior to the commencement of
the NSA negotiation process. As a
related matter, the Commission also
seeks comment on when it should first
require the Public Safety Broadband
Licensee to develop its first annual
691 In the event that the PSST continues to serve
as the PSBL, it may, as part of its first submitted
annual budget, account for its administrative and
operational expenses to date.
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budget, and when the Commission
should require the independent audit.
360. To the extent that the Public
Safety Broadband Licensee’s actual
operating expenses for a given fiscal
year turn out to be less than its
proposed budget, such that there are
excess funds left over at the end of that
fiscal year from the annual payment(s)
made by the D Block licensee(s) at the
beginning of that year, those excess
funds would be applied towards the
Public Safety Broadband Licensee’s
funding of administrative or operational
expenses for the following fiscal year, or
to fund secondary activities, such as the
purchase of equipment for the benefit of
individual public safety agencies. The
Commission expects that the various
reporting and auditing requirements
will provide the Commission with
sufficient ability to ensure that the
Public Safety Broadband Licensee’s
expenses are reasonable and that it is
operating within the scope of its
prescribed role and responsibilities.692
361. Finally, in light of the funding
mechanism the Commission proposes
above, the Commission tentatively
concludes that the Commission will not
permit the Public Safety Broadband
Licensee to charge a separate lease fee
to the D Block licensee(s) for their use
of the public safety broadband
spectrum. As noted elsewhere, given the
funding mechanism the Commission is
tentatively proposing above, the
Commission is also tentatively
proposing not to permit the Public
Safety Broadband Licensee to obtain
loans or financing from any other
sources.
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(iv) Funding of the PSBL Through the
Federal Government
362. Commenters generally
questioned the legality of funding the
Public Safety Broadband Licensee’s
operations through the Universal
Service Fund (USF) and/or
Telecommunications Development
Fund (TDF). APCO, for example,
asserted that from a ‘‘public policy
perspective, there is much to support
using USF’’ to support the PSBL, but
noted ‘‘potential legal issues’’ in that the
PSBL is not a common carrier.693
NPSTC observed that the ‘‘revenue base
of [the USF and TDF] is already subject
to varying constraints and demands, if
692 As discussed elsewhere, the Commission
propose certain limitations on the role and
responsibilities of the Public Safety Broadband
Licensee, which should lead to significantly
decreased expenses than what may have originally
been envisioned by the PSST.
693 APCO Comments at 19. See also PSST
Comments at 25. However, the PSST does
recommend use of the USF and TDF to fund the D
Block licensee’s activities. Id.
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not controversy,’’ concluding that ‘‘[t]he
risks associated with these alternatives
appears to outweigh any potential
benefit.’’ 694
363. With respect to other sources of
Federal funding for the PSBL, many
commenters supported such action,
noting Congresswoman Jane Harmon’s
proposed legislation 695 to achieve this
result.696 NATOA, for example, asserted
that ‘‘government funding of the PSBL
is the best option to preserve the
licensee’s independence from
commercial interests.’’ 697
364. Spectrum Acquisitions proposed
a revised band plan leading to increased
D Block spectrum which, when
auctioned, could ‘‘provide additional
funds to be transferred to the PSST.’’ 698
Hanna suggested using ‘‘revenues
generated from pending auctions, to
provide a funding stream to all the
PSST/PSBL to operate in an
independent and transparent
manner.’’ 699 The IAFF suggested
establishment of ‘‘a grant program to
fund the administrative and operational
costs of the public safety licensee, thus
eliminating the need for the public
safety licensee to procure such funding
from for-profit entities.’’ 700
365. Discussion. As an initial matter,
the Commission does not believe that
the USF or TDF funding programs are
appropriate for funding the Public
Safety Broadband Licensee’s operations.
In the case of USF, the Commission
observes that the USF program
ultimately is intended to fund actual
services, whereas the context for
exploring USF funding in this
proceeding is to fund the day-to-day
administrative operations of the Public
Safety Broadband Licensee.701
Moreover, USF funding is limited to
‘‘eligible telecommunications carriers’’
(ETC),702 and as the PSST observes, to
be designated as an ETC, the Public
Safety Broadband Licensee ‘‘would need
694 NPSTC
Comments at 20–21.
Public Safety Broadband Authorization
Act of 2008, H.R. 6055, 110th Cong. (2008).
696 See AT&T Comments at 21; Philadelphia
Comments at 5; NRPC Comments at 5;
TeleCommUnity Comments at 12; RPC 33
Comments at 5; RPC 20 Reply Comments at 18.
697 NATOA et al. Comments at 15.
698 SAI Comments at 13.
699 Hanna Reply Comments at 2–3.
700 IAFF Comments at 3.
701 See, e.g., 47 U.S.C. 254(c)(1) (‘‘In general.—
Universal service is an evolving level of
telecommunications services * * *’’) (emphasis
added); 47 U.S.C. 254(e) (‘‘A carrier that receives
[USF] support shall use that support only for the
provision, maintenance, and upgrading of facilities
and services for which the support is intended.’’).
702 See 47 U.S.C. 254(e).
695 See
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Fmt 4701
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57813
to be a common carrier, which it is not
and cannot become.’’ 703
366. With respect to the TDF, as
currently constituted, this program
appears inappropriate for funding the
Public Safety Broadband Licensee’s
operations. Congress established the
TDF in Section 707 of the
Telecommunications Act of 1996 704 as
a mechanism to promote access to
capital for small businesses in the
telecommunications industry, stimulate
the development of new technology,
and support delivery of universal
service.705 The TDF, a non-profit
corporation, essentially functions as a
venture capital fund, making loans to
‘‘eligible small business[es]’’ based upon
business plans and related
considerations.706 As such, the TDF
takes equity positions in the companies
that seek its assistance, and makes
funding decisions largely based upon
the business case of the potential
borrower, both of which are inapposite
to the non-profit status of the Public
Safety Broadband Licensee and its
operations. Moreover, since the TDF
program is a statutory entity with no
implementing FCC regulations,
accommodating the funding of the
Public Safety Broadband Licensee by
the TDF would require legislation.
367. Regarding commenters’ other
suggested sources for Federal funding of
the PSBL, while the Commission agrees
that government funding of the PSBL
may well be the best option to preserve
the licensee’s independence from
commercial interests, the Commission
notes that it has no control over
Congressional disbursement of funds.
Moreover, the use of auction revenues
or Federal grants for the purpose of
funding the PSBL would also require
Congressional legislation.
(v) Restrictions on Financing
368. With regard to the issue of
implementing restrictions on financing
that would facilitate necessary funding
while still ensuring the independence of
the Public Safety Broadband Licensee,
the comments again reflected mixed
views.
369. The PSST stated that in its early
years of operation it ‘‘likely will need to
703 PSST Comments at 25 (citing 47 U.S.C.
214(e)).
704 Public Law No. 104–104, § 707, 110 Stat. 56,
47 U.S.C. 614.
705 See 47 U.S.C. 614(a).
706 See 47 U.S.C. 614(f). TDF funds may only be
used for: ‘‘The making of loans, investments, or
other extensions of credits to eligible small
businesses’’; provision of financial advice to
‘‘eligible small businesses’’; conducting research;
paying the TDF’s operating expenses; and ‘‘other
services’’ consistent with the TDF’s purposes. See
47 U.S.C. 614(e).
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borrow money’’ and the Commission
‘‘should continue to allow the PSBL to
secure ordinary commercial loans at
reasonable rates.’’ 707 The Virginia Fire
Chiefs stated that if ‘‘neither Congress
nor FCC can provide * * * funding, it
should not deny the PSST the ability to
fund itself using methods commonly in
use by other non-profit entities.’’ 708
AASHTO supported the ‘‘Commission’s
concern [that] the holder of the PSBL is
representative of all public safety
groups,’’ but urged the Commission to
‘‘strongly consider if the imposition of
any additional conditions, mandates, or
restrictions placed on one not-for-profit
licensee would apply equally to all
other not-for-profit licensees.’’ 709
AASHTO further argued that
‘‘[i]mposition of FCC regulations above
those requirements of the [IRS] only
obfuscate the issue and do not add
clarity or transparency.’’ 710
370. APCO argued that ‘‘[e]quity
funding from any sources should be
prohibited, as that would undermine the
independence and non-profit status of
the PSBL.’’ 711 APCO further asserted
that ‘‘the PSBL must have the ability to
seek debt financing (i.e., loans) to fund
its operations, and those loans would
almost certainly need to be from banks
or other ‘‘for profit’’ institutions.’’ 712
NATOA argued that the PSBL should
not be allowed to ‘‘obtain debt or equity
financing from any source * * * unless
such source is also a non-profit
entity.’’ 713 Peha asserted that
prohibiting the PSBL from accepting
funds from for-profit entities ‘‘is a useful
restriction, but not a sufficient
restriction,’’ because some entities
might qualify as non-profit yet have
missions that would make it
‘‘problematic if they funded the
PSBL.’’ 714 Accordingly, Peha argued
that the funding ‘‘should come from a
source whose unambiguous objective is
either to serve the public interest, or to
serve public safety.’’ 715
371. As indicated above, commenters
also opposed allowing the PSBL to
obtain funding from any of its agent/
advisors. APCO, for example, contended
that the ‘‘agent/advisor’s funding of the
PSST and the resulting debt creates at
707 PSST
Comments at 23 n. 48.
Fire Chiefs Comments at 2. See also
RPC 33 Comments at 7; NPSTC Comments at 21;
Northrop Grumman Comments at 12; NAEMT
Comments at 3–4; AASHTO Comments at 14.
709 AASHTO Comments at 7.
710 AASHTO Comments at 8.
711 APCO Comments at 17.
712 APCO Comments at 17.
713 NATOA et al. Comments at 15. See also
Philadelphia Comments at 5.
714 Peha Comments at 10.
715 Peha Comments at 10.
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least a perception that the agent/advisor
could exert undue influence over the
PSST.’’ 716 APCO further contended that
such funding scenario ‘‘imposes a
financial burden that could interfere
with the PSST’s mission.’’ 717
Accordingly, APCO asserted that ‘‘the
Commission’s rules should prohibit the
PSBL from borrowing funds from
entities that provide substantial services
to the PSBL.’’ 718
372. Peha espoused a similar view,
noting that by obtaining funding from
its advisor, ‘‘the PSST has probably lost
the option of choosing a new advisor if
it is ever unhappy with the current one
* * *’’ 719 Peha observed that where the
PSBL’s advisor also loans money to the
PSBL, the advisor then ‘‘has a great deal
to lose if the PSBL is unable to reach
agreement with a commercial provider,
as the loan will never be repaid,’’ but
‘‘has nothing to lose if the PSBL reaches
an agreement that fails to meet the
needs of a single public safety
organization.’’ 720 Verizon Wireless
argued that a single entity that both
loans money and serves as an advisor to
the PSBL ‘‘raises issues concerning
potential conflicts,’’ and that, in such
instances, the Commission ‘‘should take
steps to ensure that the no-commercialprofit principal is not violated.’’ 721
373. Discussion. As indicated above,
the Commission is proposing that
funding for the Public Safety Broadband
Licensee’s operational and
administrative costs would come
through the annual payment to the
Public Safety Broadband Licensee of
one percent of the amount of the D
Block licensee’s gross winning bid, but
not to exceed the sum of $5 million per
year. The Commission believes this
funding mechanism will make it
unnecessary for the Public Safety
Broadband Licensee to seek third party
loans to fund start-up and ongoing
operations. Thus, the Commission
proposes to clarify that the Public Safety
Broadband Licensee may not obtain
debt or equity financing from any
source. As commenters point out, the
independence of the Public Safety
Broadband Licensee may be unduly
influenced by for-profit motives or
outside commercial influences in
716 APCO
Comments at 17.
Comments at 17.
718 APCO Comments at 17. See also APCO
Comments at 17–18 (‘‘[An] appropriate provision
would be to prohibit debt financing from any entity
that provides services to or otherwise has business
relationships with the PSBL.’’).
719 Peha Comments at 9–10.
720 Peha Comments at 10.
721 Verizon Wireless Comments at 34. See also
AT&T Comments at 19, 21; IAFF Comments at 3;
RPC 20 Reply Comments at 17; Verizon Wireless
Reply Comments at 23–26.
717 APCO
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carrying out its official functions were it
allowed to enter into financing
agreements with third party, for profit
entities. For similar reasons, the
Commission proposes to prohibit the
acquisition of any financing, whether
debt or equity, from Public Safety
Broadband Licensee agents, advisors or
any entity that provides services to the
Public Safety Broadband Licensee.722
Further, the Commission remains
concerned that any financial
arrangement beyond those described
below with respect to funding from the
D Block licensee(s) would impose a
financial burden that could compromise
the functioning and mission of the
Public Safety Broadband Licensee.
Thus, the Commission proposes to
prohibit the Public Safety Broadband
Licensee from entering into any
financial arrangements with third party,
non-profit entities for the purpose of
securing funding.
b. Fees for Services Provided to Public
Safety Entities
374. Background. In the Second
Report and Order, the Commission
provided guidance concerning the
service fees that the D Block licensee
could charge public safety users for
their access to and use of the public
safety broadband network and, in times
of emergency, to the D Block
spectrum.723 The Commission also
discussed the importance of the D Block
licensee’s ability to offer commercial
services using the public safety
broadband spectrum leased from the
Public Safety Broadband Licensee.724
375. The Commission required that all
service fees—including service fees that
the D Block licensee would charge
public safety users for normal network
service using the public safety
broadband spectrum and for their
priority access to the D Block
spectrum—be specified in the Network
Sharing Agreement.725 The Commission
encouraged the parties to negotiate a fee
agreement that incorporates financial
incentives for the D Block licensee
based on the number of public safety
entities and localities that subscribe to
the service.726 The Commission also
observed that, for the negotiation of
reasonable rates, typical commercial
722 The Commission includes any equipment
manufacturer financing to support the acquisition
of equipment for public safety users.
723 Second Report and Order, 22 FCC Rcd at
15448–49 paras. 450–52.
724 Second Report and Order, 22 FCC Rcd at
15437–39 paras. 414–19, 15441 para. 425.
725 Second Report and Order, 22 FCC Rcd at
15448 para. 45.
726 Second Report and Order, 22 FCC Rcd at
15448 para. 450.
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rates for analogous services might be
useful as a guide, but that the negotiated
rates may in fact be lower than typical
commercial rates for analogous
services.727 The Commission added that
the Commission expectation was that
the winning bidder of the D Block
license and the Public Safety Broadband
Licensee would negotiate a fee structure
for priority access to the D Block in an
emergency that will protect public
safety users from incurring unforeseen
(and unbudgeted) payment obligations
in the event that a serious emergency
necessitates preemption for a sustained
period.728
376. In the Second FNPRM, the
Commission invited comment on
whether the Commission should
reconsider any aspect of the rules
regarding service fees to be paid by
public safety users, including any
applicable fees for normal network
service and fees for priority access to the
D Block in an emergency.729 The
Commission specifically sought
comment on whether the Commission
should clarify any aspect of these
service fees that was left to
negotiations.730 The Commission also
asked whether the Commission
provided adequate guidance in the
Second Report and Order to enable the
parties to negotiate reasonable rates for
all fees, or whether the Commission
should adopt a more detailed fee
structure or formula to facilitate
negotiations on this issue.731 The
Commission asked, for example,
whether the Commission should specify
that the D Block licensee is entitled to
charge rate-of-return or cost-plus rates,
taking the incremental costs of public
safety network specifications and other
costs attributable uniquely to public
safety users into account.732
Alternatively, the Commission asked
whether requiring public safety users to
pay the same rates as commercial users
would be sufficient.733 The Commission
further asked whether the Commission
should mandate that public safety users
be entitled to receive the lowest rate that
the D Block licensee offers to its
727 Second Report and Order, 22 FCC Rcd at
15449 para. 451.
728 Second Report and Order, 22 FCC Rcd at
15449 para. 451. Elsewhere, the Commission stated
that this ‘‘[p]riority service, although provided to
public safety, will still be commercial, and will not
appreciably impair the D Block licensee’s ability to
provide commercial services to other parties.’’ Id.
at 15437 para. 413.
729 Second FNPRM, 23 FCC Rcd at 8094 para. 132.
730 Second FNPRM, 23 FCC Rcd at 8094 para. 132.
731 Second FNPRM, 23 FCC Rcd at 8094 para. 132.
732 Second FNPRM, 23 FCC Rcd at 8094 para. 132.
733 Second FNPRM, 23 FCC Rcd at 8094 para. 132.
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commercial users for analogous
service.734
377. The Commission also sought
comment on whether particular uses of
the public safety broadband network by
public safety users should be free and
others fee-based, and upon what bases
such distinction should be made.735 In
this regard, the Commission asked
whether it is practical to use serviceand context-based distinctions, such as
between voice and advanced data
services, mission-critical and nonmission-critical communications,
emergency and non-emergency events,
priority and non-priority access, or
similar metrics.736 Alternatively, the
Commission asked whether it would be
preferable to rely on technical
distinctions, such as a specified number
of minutes or bits, a percentage of
network capacity, or similar metrics.737
Finally, the Commission asked whether
either approach would provide
sufficient certainty to public safety users
and/or the commercial D Block
licensee.738
378. Comments. A number of
commenters addressed whether the
Commission should more clearly define
the fees to be charged to public safety
users. AT&T, for example, asserted that
‘‘it is critically important that the
Commission provide additional
guidance in this area * * * to enable
potential commercial participants to
evaluate the financial prospects of this
venture.’’ 739 Peha argued that the fees
should be set in advance of the auction
because ‘‘no public safety agency will
purchase equipment to use a system
unless it can be certain that the monthly
fees will be reasonable for the life of that
equipment, if not indefinitely.’’ 740
Similarly, Mercatus urged the
Commission to provide ‘‘more
specificity on what the D Block licensee
may charge public safety users.’’ 741
379. The PSST indicated that it
‘‘understands the desire by some parties
that service fees be set prior to the
auction, [but] sees no reasonable way of
doing so.’’ 742 Specifically, the PSST
argued that ‘‘[n]etwork service fees will
and should have some correlation to
network costs. But those costs will vary
734 Second
735 Second
FNPRM, 23 FCC Rcd at 8094 para. 132.
FNPRM, 23 FCC Rcd at 8094–95 para.
133.
736 Second
FNPRM, 23 FCC Rcd at 8094–95 para.
133.
737 Second
743 PSST
738 Second
FNPRM, 23 FCC Rcd at 8094–95 para.
133.
739 AT&T
Comments at 20.
Comments at 13.
741 Mercatus Comments at 2.
742 PSST Comments at 37.
740 Peha
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considerably depending on the D Block
winner.’’ 743 In this regard, the PSST
observed that ‘‘[a]n incumbent with
built-out infrastructure and an in-place
retail service business will have
different requirements than a new
entrant that would need to build a
network from scratch or from a winner
that elects to operate on a wholesaleonly basis.’’ 744 Accordingly, the PSST
argued that ‘‘it is not possible to
determine service fees prior to knowing
the identity and business plans of the D
Block winner.’’ 745
380. The PSST added that it is
‘‘opposed to allowing the D Block
licensee to recoup the incremental cost
of a public safety-quality build from
public safety users,’’ which arrangement
the PSST argued would ‘‘not be
materially different than if the PSST
were to pay an incumbent wireless
carrier to augment its existing facilities
to support a public safety-grade 700
MHz system, particularly if the carrier
was deploying its own 700 MHz
network.’’ 746 According to the PSST,
the ‘‘better approach is to encourage the
parties to negotiate a mutually
acceptable rate(s) for public safety
entities, one that will encourage
widespread public safety adoption and
that also provides the D Block operator
with reasonable compensation
consistent with the benefits it is
receiving from the partnership
arrangement,’’ but in all cases, ‘‘the FCC
should continue to specify a
requirement (or at least an expectation)
that the fees paid by public safety users
should be substantially lower than the
fees paid by the D Block licensee’s
commercial customers.’’ 747
381. Northrop Grumman urged the
Commission ‘‘to adopt an objective
method for the determination of fees,
including a mechanism to segregate and
define the charges to public safety users,
with cost recovery using a ‘‘no profit, no
loss’’ or similar framework.’’ 748
According to Northrop Grumman, such
an approach would ‘‘align the
incentives of the D Block licensee and
the PSBL toward serving public safety’s
needs, and ensure that the costs of
public safety’s needs are met without
conflicting with overall viability of the
shared network.’’ 749
382. Televate contended that the
‘‘maximum service price for priority
public safety services must be
FNPRM, 23 FCC Rcd at 8094–95 para.
133.
Frm 00067
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Sfmt 4702
57815
Comments at 37.
Comments at 37.
745 PSST Comments at 37.
746 PSST Comments at 36.
747 PSST Comments at 36–37.
748 Northrop Grumman Comments at 8.
749 Northrop Grumman Comments at 8.
744 PSST
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discounted from list rates by at least 20
percent.’’ 750 Televate also suggested
that bidders should somehow be
credited for offering ‘‘higher levels of
discounts off commercial list prices’’
and ‘‘innovative methods to bring the
maximum number of public safety
personnel on to the network.’’ 751 Gerard
Eads, a ‘‘communications
administrator,’’ urged the Commission
to require ‘‘that public safety agencies
access the system at no recurring
charge’’ and subsidize their fees using
revenue from the auction.752
383. NTCH proposed the imposition
of ‘‘a relatively modest usage fee,’’ the
proceeds from which could ‘‘pay the
ongoing costs of the public safety
licensee as well as system
maintenance.’’ 753 According to NTCH,
the service could still be provided at a
discount to costs currently incurred by
public safety entities and ‘‘the charge to
public safety users for unlimited calling
would be equivalent to similar charges
to a private sector user for unlimited
calling plans and data transfers over the
network.’’ 754 U.S. Cellular asserted that
to ‘‘increase the attractiveness’’ of less
populated geographic areas in the D
Block, the Commission could make ‘‘the
service fees more commercially
attractive (in areas with low volumes of
public safety usage, lower charges for
the D Block licensee’s use of the public
safety spectrum, and higher charges for
public safety agencies’ use of the D
Block spectrum).’’ 755 California argued
in favor of implementing ‘‘a small
incremental cost increase in a ‘heavy
use’ area as a means of offsetting the
cost for providing service to a ‘low use’
area.’’ 756
384. Some commenters argued that
the Federal government should
subsidize the public safety network.
RPC 33 argues that the user fees should
be ‘‘fair and equitable to all concerned’’
and that funding for the network should
come from the Federal government until
the D Block spectrum becomes
profitable.757 Wireless RERC supported
capping fees that could be charged to
public safety entities and contends the
network costs could be subsidized using
‘‘funds appropriated by Congress,
federal grants, or a cost-recovery
fund.’’ 758
385. APCO indicated that ‘‘per unit
and aggregate service pricing has been a
jlentini on PROD1PC65 with PROPOSALS2
750 Televate
Comments at 10.
Comments at 10.
752 Eads Comments at 3.
753 NTCH Comments at 6.
754 NTCH Comments at 6.
755 U.S. Cellular Comments at 14, 22.
756 California Comments at 5.
757 RPC 33 Comments at 5.
758 Wireless RERC Comments at 12–13.
751 Televate
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major concern for APCO since the
inception of this process.’’ 759
Specifically, APCO argued that ‘‘it will
almost always cost more to provide an
equal level of service to the smaller
agency that works in remote areas and
have wide jurisdictional areas than it
will to cover a dense urban area.’’ 760
APCO suggested that the imbalance in
equalizing rates between populated
versus less populated areas could be
addressed through such measures as
‘‘blanket Federal subsidies,’’ ‘‘a rate
structure that is subsidized by the other
users,’’ or for the Commission ‘‘to
collect a user fee on all users, similar to
a 911 service fund or fee.’’ 761 In all
cases, however, APCO recommended
that the Commission ‘‘take full
advantage of an advisory rate board,
commission or advisory group to assist
in establishing the rates and future
adjustments to them.’’ 762 APCO also
suggested that the Commission allow
the ‘‘PSBL and the D Block licensee to
negotiate with qualified public safety
agencies to accept capital investments
or the use of publicly funded capital
investment in exchange for reduced
rates.’’ 763
386. AT&T argued that the
Commission ‘‘must promulgate
guidelines that address the service fees
commercial partners may charge local
public safety users * * * .’’ 764 AT&T
further argued that ‘‘[p]otential
commercial partners require such
clarification in order to evaluate the
financial prospects of this venture’’ and
that, therefore, if ‘‘the Commission
intends to restrict the type or amount of
service fees a commercial partner may
charge a local public safety user, the
Commission must clearly explain this
restriction prior to an RFP process or a
reauction.’’ 765
387. Discussion. Resolving the matter
of service fees for public safety use of
the broadband network requires us to
carefully balance the interests of
potential D Block bidders and public
safety users of the network.766 It is also
759 APCO
Comments at 14.
Comments at 14.
761 APCO Comments at 15.
762 APCO Comments at 15.
763 APCO Comments at 16.
764 AT&T Reply Comments at 20; see also
Northrop Grumman Comments at 7–8; Peha
Comments at 13; Wireless RERC Comments at 12–
13.
765 AT&T Reply Comments at 20. AT&T also
recommended guidelines addressing spectrum
usage fees, and asserted that, if ‘‘the Commission
permits the PSBL to charge access fees, the
Commission should ensure that such payments be
negotiated * * * using commercial practices for
cost recovery for the PSBL.’’ Id.
766 See AT&T Comments at 20. The Commission
also recognizes Peha’s argument that a failure to
760 APCO
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important to provide both sets of
stakeholders with a fee structure that is
reasonably stable and predictable,
notwithstanding the difficulty of
determining such fees given the limited
information before us.767 The
Commission agrees with commenters
that potential commercial participants
need sufficient pre-auction information
regarding fees to help them evaluate the
financial prospects of providing both a
commercial- and public safety-oriented
service.768 Similarly, the Commission
believes that public safety agencies need
specificity regarding prospective fees in
order to ensure their timely
commitment to use the public safety
spectrum and to enable them to plan
and budget for the use of the new
network.
388. As an initial matter, with regard
to those commenters who argue that the
fees charged to public safety users of the
shared network should be subsidized by
the Federal government, whether on an
ongoing basis or through the use of
auction proceeds,769 the Commission
notes that the Commission’s lack the
authority to obligate Federal funds in
such fashions. In addition, while the
Commission finds Northrop Grumman’s
concept of a ‘‘no profit, no loss’’ or
similar framework appealing,770 the
Commission does not believe that the
Commission should prohibit the D
Block licensee from deriving income
from public safety users of the public
safety spectrum. The Commission agrees
with the general consensus of most
commenters, however, that any fees
charged to public safety users should be
discounted as compared to the fees
charged to commercial users.
389. The Commission tentatively
concludes, therefore, that the
Commission should establish fixed
nationwide service fees that the D Block
licensee may charge to public safety
users based upon a discounted rate
schedule. The Commission believes that
adopting a fee schedule nationwide will
ensure uniform standards and practices
in the 700 MHz band, rapid adoption
and deployment by public safety users,
and provide an efficient cost structure
for the D Block licensee(s) as it builds
out a network capable of supporting
commercial and public safety users.
390. As the Commission considers the
specific fees to be mandated, the
Commission tentatively concludes that
the rates being offered today for
determine rates ex ante could adversely affect
public safety purchase of 700 MHz equipment. See
Peha Comments at 13.
767 See Peha Comments at 13.
768 See, e.g., AT&T Comments at 20.
769 See Eads Comments at 3.
770 See Northrop Grumman Comments at 8.
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Federal Register / Vol. 73, No. 193 / Friday, October 3, 2008 / Proposed Rules
broadband wireless data service provide
a sufficient, forward-looking benchmark
upon which to establish a nationwide
fee schedule. The Commission
tentatively concludes that the
characteristics of services, such as those
offered by Verizon Wireless, AT&T
Mobility, Sprint Nextel, and T-Mobile,
are consistent with those that will be
associated with the public safety
broadband network. The Commission
also finds that offering such discounted
fixed rates is a standard practice of
nationwide and regional wireless
carriers that have established voice and
data service prices for public safety and
57817
government users. The Commission
bases its conclusion on a survey of
contracts, as presented in Table 2, that
are presently offered to governments
and public safety authorities for
wireless voice and data services.771
TABLE 2—SURVEY: DISCOUNTED WIRELESS DATA PLANS
Contracting entity
Wireless operator
Service plan 772
General Services Administration 773 ...............
Verizon Wireless .....
VZAccess (NationalAccess/ ...................................................
BroadbandAccess) .................................................................
Western States Contracting Alliance 774 .........
Verizon Wireless .....
Sprint PCS ...............
BroadbandAccess for Internet and E-mail .............................
Sprint PCS Connection Card Unlimited Usage (applies to
usage on both 1xRTT and EVDO networks).
T-Mobile Total Internet, Unlimited Usage ..............................
T-Mobile Total Internet for Data Cards, Unlimited Usage .....
Public Safety Unlimited Data .................................................
VZAccess (NationalAccess/BroadbandAccess) .....................
Unlimited Connection Plan EVDO DataLink ..........................
Unlimited Connection Plan 1xRTT DataLink .........................
Wireless Data Usage Plan, Unlimited Usage ........................
Wireless Data Usage Plan, Unlimited Usage ........................
Wireless Data Usage Plan, Unlimited Usage ........................
T-Mobile 776 .............
State of New York 780 ......................................
State of Florida 781 ..........................................
AT&T Mobility 779 .....
Verizon Wireless .....
Sprint Nextel ............
AT&T Mobility ..........
Sprint .......................
Verizon Wireless .....
Monthly
service
charge
$48.59
49.19 775
49.99
33.99 777
42.49 778
49.99
48.59
59.99
59.99
43.99
44.99
52.59
jlentini on PROD1PC65 with PROPOSALS2
391. Generally, the service rates
charged by these carriers apply
nationwide, thus providing a useful
model for establishing a nationwide,
fixed rate schedule for public safety
users of the shared wireless broadband
network. Based on the Commission
survey, the average discounted service
charge is approximately $48.50 per
month, which thus may serve as an
appropriate amount. In sum, the
Commission seeks comment on its
tentative conclusions that it should set
a specific service fee for public safety
users and that such fee be based on rates
charged to government users of existing
wireless, voice, and data services. The
Commission also seeks comment on
whether a rate of $48.50 per user per
month as the base rate that will be
charged to all public safety users is
reasonable.
392. In developing a proposed base
rate, the Commission seeks to achieve
the best approximation of what a
competitive, yet discounted rate should
be for these services. The Commission
771 See, e.g., General Services Administration,
Federal Supply Service, Cellular/PCS Services,
Contract # GS-35F-0119P, available at https://
www.gsaadvantage.gov/ref_text/GS35F0119P/
0EA660.1OSTP9_GS-35F-0119P_GSAADVANTAGE
MOD12GS35F0119P040408.PDF (last viewed on
August 27, 2008); Western State Contracting
Alliance, at https://www.aboutwsca.org/
welcome.cfm (last viewed on August 27, 2008);
State of New York, Office of General Services,
Procurement Services Group, Contract Number
PS61217, Group Number 77008 (effective August
15, 2007), available at https://www.ogs.state.ny.us/
purchase/prices/7700802459prices1207.pdf (last
viewed on August 27, 2008).
772 The Commission notes that some of these
plans contain restrictions on the use of the wireless
data network. For example, Verizon Wireless’
contracts discussed herein stipulate its wireless
data services may only be used for ‘‘(i) Internet
browsing, (ii) e-mail, and (iii) intranet access
(including access to corporate Intranets, e-mail and
individual productivity applications like customer
relationship management, sales force and field
automation.’’ Verizon Wireless specifically
prohibits uses including the ‘‘ (i) continuous
uploading, downloading or streaming of audio or
video programming or games, (ii) server devices or
with host computer applications, other than
applications required for enhanced phone
applications, including but not limited to web
camera posts or broadcasts, automatic data feeds,
automated machine-to-machine connections, or
peer-to-peer file sharing, or (iii) as a substitute or
backup for private lines or dedicated data
connections.’’ Similarly, Sprint Nextel’s contract
stipulates that ‘‘[s]ervices are not available for use
in connection with server devices or host computer
applications, other systems that drive continuous
heavy traffic or data sessions.’’ See State of New
York, Office of General Services, Verizon Wireless
Contract Number PS61217 (effective August 15,
2007), available at https://www.ogs.state.ny.us/
purchase/prices/7700802459prices1207.pdf (last
viewed on August 27, 2008) (New York State
Verizon Wireless Contract); Sprint Nextel Contract
Number PS60701 (effective July 15, 2007), available
at https://www.ogs.state.ny.us/purchase/prices/
7700802459prices1207.pdf (last viewed on August
27, 2008) (New York State Sprint Nextel Contract).
See also General Services Administration, Federal
Supply Service, Cellular/PCS Services, Contract #
GS–35F–0119P, available at https://www.gsa
advantage.gov/ref_text/GS35F0119P/0EA660.
1OSTP9_GS-35F-0119P_GSAADVANTAGEMOD
12GS35F0119P040408.PDF (last viewed on August
27, 2008) (GSA Verizon Wireless Contract).
773 GSA Verizon Wireless Contract.
774 The WSCA is comprised of state purchasing
directors that negotiate purchasing contracts for
goods and services. WSCA membership consists of
the principal procurement official that heads the
state central procurement organization, or designee
for that state, from the states of Alaska, Arizona,
California, Colorado, Hawaii, Idaho, Minnesota,
Montana, Nevada, New Mexico, Oregon, South
Dakota, Utah, Washington and Wyoming. In
addition, the following states use WSCA contracts:
Alabama, Arkansas, Florida, Georgia, Iowa, Illinois,
Indiana, Kansas, Kentucky, Massachusetts,
Maryland, Maine, Michigan, Missouri, Mississippi,
North Carolina, Nebraska, New Hampshire, New
York, Ohio, Oklahoma, Pennsylvania, Rhode Island,
Tennessee, Texas, Wisconsin, and the District of
Columbia.
775 This amount reflects an 18% discount that
Verizon Wireless extends to signatories of the
WSCA contract. According to Verizon Wireless, the
standard rate is $59.99. See Verizon Wireless, at
https://b2b.verizonwireless.com/b2b/commerce/
shop/viewPlanDetail.go?planId=48372 (last viewed
on August 27, 2008).
776 Under its contract with the WSCA, T-Mobile
extends a 15% discount on recurring monthly
charges. See WSCA, Contract for Services of
Independent Contractor, T-Mobile USA, available at
https://purchasing.state.nv.us/Wireless/T-Mobile_
Contract.pdf (last viewed on August 27, 2008).
777 This amount reflects a 15% discount off the
$39.99 retail rate.
778 This amount reflects a 15% discount off the
$49.99 retail rate.
779 See WSCA, Contract for Services of
Independent Contractor, AT&T Mobility, available
at https://purchasing.state.nv.us/Wireless/Cingular_
BB.pdf (last viewed on August 27, 2008).
780 New York State Verizon Wireless Contract;
New York State Sprint Nextel Contract.
781 State of Florida, Department of Management
Services, MyFloridaSUNCOM Services, at https://
dms.myflorida.com/cits/portfolio_of_services/
suncom/wireless_services/wireless_data_services_
aircard (last viewed August 27, 2008).
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Federal Register / Vol. 73, No. 193 / Friday, October 3, 2008 / Proposed Rules
jlentini on PROD1PC65 with PROPOSALS2
seeks to ensure an initial stable service
arrangement between the D Block
licensee(s) and the public safety user
community by establishing an initial flat
rate for service based on appropriate
considerations of commercial viability
and the generally limited financial
means of the public safety community.
The Commission believes this is an
important consideration towards
ensuring widespread adoption of
advanced interoperable services by the
public safety community. The
Commission recognizes, however, that
the factors that determine service rates
are not static, and that over time
marketplace forces will need to be taken
into account in the adjustment of public
safety service rates. Thus, the
Commission tentatively concludes that
the Commission will allow the fixed
rates the Commission ultimately adopts
to sunset coterminous with the
expiration of the fourth year buildout
requirement, at which point the
Commission expects the D Block
licensee(s) will be providing service to
a significant portion of the nation’s
public safety community. In the fifth
year of operation, the Commission
expects that the commercial market for
D Block spectrum and services will have
sufficiently developed so that the
General Services Administration likely
will have developed a fee schedule for
government users of the commercial
spectrum. At that time, the Commission
proposes to use that schedule as the
basis for adjusting public safety fees for
use of the network. The Commission
seeks comment on this proposal.
c. Other Essential Components
393. Background. In the Second
Report and Order, the Commission
established certain minimum criteria
that the Public Safety Broadband
Licensee must meet in order to ensure
that it ‘‘focuses exclusively on the needs
of public safety entities that stand to
benefit from the interoperable
broadband network.’’ 782 In particular,
the Commission established certain
criteria for the Public Safety Broadband
Licensee eligibility, including a
requirement that the Public Safety
Broadband Licensee must be broadly
representative of the public safety
community.783 The Commission also
required that the Public Safety
Broadband Licensee be governed by a
voting board consisting of eleven
members, one each from the nine
organizations representative of public
782 Second Report and Order, 22 FCC Rcd at
15421–22 para. 373.
783 Second Report and Order, 22 FCC Rcd at
15421–25 paras. 373–375.
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safety, and two at-large members
selected by the Public Safety and
Homeland Security Bureau and the
Wireless Telecommunications Bureau,
jointly on delegated authority.784 On
reconsideration, the Commission
revised and expanded the voting board,
and increased the at-large membership
to four.785
394. The Commission also required
that certain procedural safeguards be
incorporated into the articles of
incorporation and bylaws of the Public
Safety Broadband Licensee.786 For
example, the Commission specified that
the term of the Public Safety Broadband
Licensee officers would be two years,
and that election would be by a twothirds majority vote.787 A two-thirds
majority was also required for certain
other Public Safety Broadband Licensee
decisions, including amending the
articles of incorporation or bylaws.788
The Commission also recognized the
importance of Commission oversight in
the affairs of the Public Safety
Broadband Licensee, which the
Commission enabled by requiring the
Public Safety Broadband Licensee to
submit certain reports to the
784 The nine organizations included: the
Association of Public Safety Communications
Officials (APCO); the National Emergency Number
Association (NENA); the International Association
of Chiefs of Police (IACP); the International
Association of Fire Chiefs (IAFC); the National
Sheriffs’ Association (NSA); the International City/
County Management Association (ICMA); the
National Governor’s Association (NGA); the
National Public Safety Telecommunications
Council (NPSTC); and the National Association of
State Emergency Medical Services Officials
(NASEMSO). Second Report and Order, 22 FCC Rcd
at 15422–23 para. 374.
785 On reconsideration, the Commission removed
NPSTC and included the Forestry Conservation
Communications Association (FCCA), the American
Association of State Highway and Transportation
Officials (AASHTO), and the International
Municipal Signal Association (IMSA), and added
two additional at-large positions. Service Rules for
the 698–746, 747–762 and 777–792 MHz Bands,
WT Docket No. 96–86, Order on Reconsideration,
22 FCC Rcd 19935 (2007) (Order on
Reconsideration). The Chiefs of the Public Safety
and Homeland Security Bureau and Wireless
Telecommunications Bureau jointly appointed to
the voting board the American Hospital Association
(AHA), the National Fraternal Order of Police
(NFOP), the National Association of State 9–1–1
Administrators (NASNA), and the National
Emergency Management Association (NEMA). See
‘‘Public Safety and Homeland Security Bureau and
Wireless Telecommunications Bureau Announce
the Four At-Large Members of the Public Safety
Broadband Licensee’s Board of Directors,’’ Public
Notice, 22 FCC Rcd 19475 (PSHSB 2007).
786 Second Report and Order, 22 FCC Rcd at
15423–26 para. 375.
787 Second Report and Order, 22 FCC Rcd at
15423–26 para. 375.
788 Second Report and Order, 22 FCC Rcd at
15423–26 para. 375.
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Commission, including quarterly
financial disclosures.789
395. In the Second FNPRM, the
Commission sought to reexamine the
structure of the Public Safety Broadband
Licensee and the criteria adopted in the
Second Report and Order to ensure they
are optimal for establishing and
sustaining a partnership with a
commercial entity, and for efficiently
and equitably conducting the business
of the Public Safety Broadband
Licensee. As developed more fully
below, the Commission sought comment
on whether the Commission should
reevaluate any of these criteria, whether
the Commission should clarify or
increase the Commission’s oversight of
the Public Safety Broadband Licensee,
and whether the Commission should
make other changes to the license or
license eligibility criteria.790 The
Commission further sought comment on
how the Commission can ensure an
oversight role for Congress; whether
State governments should assume
responsibility for coordinating the
participation of the public safety
providers in their jurisdictions; and
whether, in light of possible changes to
the eligibility and other criteria that
govern the Public Safety Broadband
Licensee, the Commission should
rescind the current 700 MHz Public
Safety Broadband License and seek new
applicants.791
(i) Articles of Incorporation and ByLaws
396. Background. With respect to the
articles of incorporation and bylaws that
govern the Public Safety Broadband
Licensee, the Commission sought
comment on the adequacy of the current
requirements.792 The Commission
sought comment, for example, on
whether the Commission should require
a unanimous or super-majority vote in
certain instances, whether the
Commission should provide for
Commission review of such decisions,
and whether the Commission should
make certain decisions for the Public
Safety Broadband Licensee if unanimity
or supermajority is not achieved.793
With respect to the voting board, the
Commission sought comment on the
composition, size and qualifications of
the board.794 The Commission also
sought comment on whether the
Commission should eliminate altogether
the requirement of inclusion of specific
789 Second Report and Order, 22 FCC Rcd at
15426 paras. 376–77.
790 Second FNPRM, 23 FCC Rcd at 8067 para. 48.
791 Second FNPRM, 23 FCC Rcd at 8067 para. 48.
792 Second FNPRM, 23 FCC Rcd at 8067 para. 49.
793 Second FNPRM, 23 FCC Rcd at 8067 para. 49.
794 Second FNPRM, 23 FCC Rcd at 8067 para. 50.
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jlentini on PROD1PC65 with PROPOSALS2
voting board members, and if so, how
the Commission could ensure broad
representation of the public safety
community.795 With respect to the
leadership of the board, the Commission
asked whether the Commission should
revise the terms of the officers; whether
the Commission should require a
unanimous vote for appointment of
officers; whether the Commission
should require a rotating chairmanship
among the voting board members; and
whether the Commission should
appoint a chairperson in the event that
unanimous consent cannot be attained
on appointing such person.796
397. Comments. There were a number
of comments addressing the
composition of the PSBL board of
directors and board transparency and
voting matters.
398. Board Composition. For its part,
the PSST indicated that it ‘‘opposes any
change in the composition of its Board,
including the possibility of including
representatives from a variety of nonpublic safety entities.’’ 797 In this regard,
the PSST asserted that ‘‘the PSST is
structured in strict compliance with all
applicable FCC requirements,’’ 798 and,
as currently constituted, ‘‘collectively
represents virtually every type of public
safety and governmental entity that is
eligible to operate on the SWBN
pursuant to the PSBL license and their
interests have been well-represented in
the Board’s highly collaborative
decision making processes.’’ 799 Rather
than revise its organizational make-up,
the PSST argued that the Commission
should ‘‘instead work with the
organizations represented on the current
PSST Board to address any major
concerns about the organizational
structure and governance of the
organization.’’ 800 The PSST further
indicated that the Commission should
not prohibit the PSST Chairman of the
Board of Directors from also serving as
Chief Executive Officer in favor of
creating a separate position of
President/CEO to manage the PSST’s
business ‘‘unless the Commission has
some definite funding mechanism for
the PSST/PSBL to pay for such a
position.’’ 801
399. IACP argued that the present
PSBL board ‘‘represents not only the
myriad of agencies, but those who
finance, operate and manage public
795 Second
FNPRM, 23 FCC Rcd at 8067 para. 50.
FNPRM, 23 FCC Rcd at 8067 para. 50.
797 PSST Reply Comments at 17. See also PSST
Comments at 47.
798 PSST Comments at 45.
799 PSST Comments at 45–46.
800 PSST Comments at 47.
801 PSST Comments at 46.
796 Second
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20:35 Oct 02, 2008
Jkt 217001
safety systems.’’ 802 IACP further
asserted that reducing ‘‘the number of
the Board’’ would ‘‘dilute’’ the link
between the Board and public safety.803
IACP also asserted that any expertise
needed in telecommunications, finance
and/or management can be obtained
through the retention of experts.804
AASHTO asserted that adding any more
PSBL board members ‘‘could create a
body so unwieldy it is unable to react
to the ever changing needs of its users
in a timely manner.’’ 805 Ericsson
advises that changing the PSBL board
composition ‘‘at this time could impose
additional delay * * * and create a new
source of uncertainty.’’ 806 Other
commenters similarly urged the
Commission not to reassess the
composition or size of the Public Safety
Broadband Licensee’s board.807
400. A number of commenters,
however, proposed various changes to
the Public Safety Broadband Licensee’s
governance structure. APCO, for
example, suggested various
modifications regarding membership in
the Public Safety Broadband Licensee.
First, APCO asked the Commission to
‘‘clarify that the organizations it names
[to the board] must be the actual
members of the PSBL board to the
extent that this can be done without
creating undue financial liability to the
respective organizations.’’ 808 Second,
APCO contended that ‘‘the large size of
the PSST board has led to over-reliance
on the Chairman/CEO and a threeperson executive committee (the
chairman, vice-chairman, and secretary/
treasurer),’’ and proposed that a
‘‘smaller board would allow for a more
inclusive decision-making.’’ 809 Third,
APCO argued that the PSBL board ‘‘does
not provide sufficient diversity of
interests or required expertise to
undertake the extraordinary tasks at
hand,’’ such as ‘‘designing or operating
public safety communications systems’’
and in the fields of ‘‘business, finance,
[and] communications technology.’’ 810
According to APCO, such lack of
experience on the board leads the PSST
‘‘to rely even more heavily on the advice
of its agent/advisor and limits its ability
to engage in a thorough critique of that
802 IACP
Reply Comments at 3.
Reply Comments at 3.
804 IACP Reply Comments at 3.
805 AASHTO Comments at 11. In this context,
AASHTO advises against adding a Commission or
Congressional representative to the Board. Id.
806 Ericsson Comments at 8.
807 See, e.g., IMSA Comments at 11; IMSA Reply
Comments at 7–8; ICMA Reply Comments at 2;
NPSTC Reply Comments at 7.
808 APCO Comments at 22.
809 APCO Comments at 22.
810 APCO Comments at 22.
803 IACP
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57819
advice.’’ 811 APCO suggested that the
Commission change the composition of
the PSBL board to ‘‘a board of eight to
twelve members, with approximately
half of the members being diverse
organizations that represent potential
users of the network and those with
expertise in public safety
communications matters’’ and the other
half composed of ‘‘individuals selected
by the Commission who do not
represent any particular organization
but who would add critical knowledge
and expertise to the PSBL’s decision
making.’’ 812 APCO further
recommended that the ‘‘position of the
Chairman of the board of directors’’
should be separated ‘‘from the position
of CEO/President’’ because of the very
different responsibilities of the two
positions.’’ 813 APCO, however, did ‘‘not
support term limits or mandatory
rotation of the chairmanship.’’ 814
401. Region 33 suggested that PSBL
board membership be ‘‘limited to no
more than nine members, jointly
selected and approved by both the
FCC’s PS&HSB and the LMCC.’’ 815
Region 33 indicated that board
membership should be composed
‘‘entirely from the not-for-profit public
safety community,’’ although ‘‘ex-officio
members could be from the private
sector to serve [in a] technical advisory
role but [would] not vot[e] on the
governing issues.’’ 816
402. NATOA indicated concern ‘‘that
local governments are not adequately
represented by the current makeup of
the [PSST].’’ 817 NATOA observed that
‘‘local services, systems, property, and
personnel will be directly affected by
the construction of a nationwide public
safety broadband network,’’ and argued
that ‘‘the exclusion of such
representation deprives the PSBL of the
insights and experience of elected local
government officials that represent the
entities the PSBL is charged to
serve.’’ 818 Other commenters supported
this view.819
403. NRPC requested that the
Commission name it as ‘‘a full voting
811 APCO
Comments at 22.
Comments at 24. NENA agreed with
APCO’s recommendations on widening the relevant
experience of Board members. See NENA
Comments at 4.
813 APCO Comments at 21.
814 APCO Comments at 21.
815 RPC 33 Comments at 7.
816 RPC 33 Comments at 7. See also Lencioni
Comments at 2 (the PSBL should ‘‘be a[s] broadly
representative of the public safety radio user
community as possible’’).
817 NATOA et al. Comments at 15.
818 NATOA et al. Comments at 16.
819 See Philadelphia Comments at 4. Philadelphia
expressly endorses ‘‘the proposal by NATOA’’ in
this regard. Id. See also Philadelphia Reply
Comments at 2; Florida Comments at 4.
812 APCO
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member organization on the Public
Safety Broadband Licensee.’’ 820 In this
regard, NRPC indicated that it could
provide ‘‘a perspective on the 700 MHz
narrowband reallocation issue and
transition as well as the necessary
coordination aspects,’’ and could
‘‘contribute to the effectiveness and
coordinated use of the 1 MHz Guard
Band between 768–769–798–799
MHz.’’ 821
404. Board Transparency and Voting.
The PSST stated that ‘‘for the most part,
conducting open meetings is a good idea
to facilitate its efforts to work
cooperatively with members of the
public safety community, as well as
with vendors, commercial operators,
and other parties, and believes that
appropriate changes in its procedures
should be evaluated by the Board.’’ 822
APCO urged ‘‘that the FCC require the
PSBL board meetings be held in public,
with the proviso that the board may go
into executive session to address
sensitive matters,’’ but with ‘‘minutes
* * * describ[ing] the matters
addressed in executive session to the
extent possible without revealing
sensitive information.’’ 823 Peha
similarly stated that ‘‘one essential
requirement [of the PSBL] is
transparency,’’ and that ‘‘requirements
related to transparency should be added
to the list [of requirements to become
the [PSBL],’’ and that the ‘‘current
[PSBL], the PSST, would not meet such
requirements, and would therefore be
ineligible.’’ 824 Other commenters
expressed similar views.825 AASHTO,
however, argued that ‘‘[a]s a private
entity the PSST is not required to make
its meetings open to the general
public.’’ 826
405. With respect to voting issues, the
PSST and other commenters opposed
the adoption of any unanimous voting
requirement for the Public Safety
Broadband Licensee board decisions on
the basis that such a requirement could
lead to stalemates and dilute leadership
accountability.827 NPSTC observed that
‘‘[u]nanimous [voting] rules [ ] place in
the hands of one or a few the ability to
thwart the best ideas and initiatives.’’ 828
Both the PSST and APCO, however,
supported super-majority voting on
certain matters, including election of
820 NRPC
Comments at 6.
Comments at 6.
822 PSST Reply Comments at 16.
823 APCO Comments at 21.
824 Peha Comments at 9.
825 See, e.g., RPC 20 Reply Comments at 11;
NATOA et al. Reply Comments at 7.
826 AASHTO Reply Comments at 5.
827 See PSST Comments at 46; NPSTC Comments
at 22; APCO Comments at 21.
828 NPSTC Comments at 22.
officers.829 The IMSA urged the
Commission not to ‘‘micromanage the
affairs of the PSST by adopting
additional rules on voting
majorities.’’ 830
406. Discussion. The Commission
agrees with commenters who advocate
revising the Public Safety Broadband
Licensee’s organizational structure to
enhance the Public Safety Broadband
Licensee’s operational efficiency and
transparency. In light of the unique
representative nature of the license,
which the Public Safety Broadband
Licensee holds on behalf of those public
safety entities eligible to utilize this
spectrum, the public interest favors any
changes to the Public Safety Broadband
Licensee’s organizational structure that
will better ensure that its actions reflect
due consideration of the broad panoply
of public safety interests it represents.
The Commission also considers it
important to hold the PSBL to a
standard of transparency that will
ensure that its obligations are met in a
manner that instills public confidence
in both the process and the outcome of
its actions. The Commission believes
improvements in these areas can be
achieved with a few modifications to
the Public Safety Broadband Licensee’s
current organizational structure, along
with other modifications the
Commission are proposing with respect
to the Public Safety Broadband
Licensee’s Board’s meeting and voting
requirements.
407. Board Composition. The
Commission tentatively concludes that
the Commission will retain the current
PSBL board composition, except that
the Commission proposes to replace the
National Emergency Management
Association (NEMA) 831 on the board
with the National Regional Planning
Council (NRPC). The Commission
proposes to remove NEMA as a
representative organization on the board
because its initially appointed
representative has consistently failed to
attend board meetings and the
organization has not otherwise
materially participated in PSBL board
activities. Because NEMA has not
meaningfully participated as a member
organization of the PSBL, the
Commission tentatively concludes that
it no longer would serve the public
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829 PSST
Comments at 46; APCO Comments at 21.
Comments at 11.
831 NEMA is composed of state directors of
emergency management, and is dedicated to
enhancing public safety by improving the nation’s
ability to prepare for, respond to and recover from
all emergencies, disasters, and threats to the
Commission nation’s security. See https://
www.nemaweb.org.
830 IMSA
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interest to include NEMA as a PSBL
board member.
408. The Commission proposes
adding NRPC as a replacement board
member for a number of reasons. The
NRPC is a national organization drawn
from the FCC-authorized Regional
Planning Committees (RPCs), whose
affiliation is linked to the states and
U.S. Territories. The NRPC’s mission is
to serve public safety communications
users through planning and
management to meet their spectrum
needs.832 As the Commission observed
in the Second FNPRM, and consistent
with the Commission tentative
conclusions herein, the Commission
anticipates that some of the PSBL’s roles
and responsibilities will be akin to the
functions presently performed by the
700 MHz RPCs.833 Thus, the NRPC
would bring important and relevant
experience to the PSBL board by virtue
of its role in assisting regions with
coordinating 700 MHz public safety
spectrum use. The Commission also
agrees with the NRPC’s comments on its
own behalf that its addition to the board
would prove valuable to the PSBL in
terms of the narrowband relocation
process, and concerning coordination
between the use of the public safety
broadband spectrum and the guard band
and narrowband allocations.834 The
Commission seeks comment on these
tentative conclusions.
409. On a related matter, as noted
above, APCO requests that the
Commission clarify that the
organizations the Commission names as
PSBL board members ‘‘must be the
actual members of the PSBL board’’ in
order to avoid ‘‘discourag[ing]
organizational input into matters being
voted upon by the PSST Board.’’ 835 One
of the core eligibility requirements of
the PSBL is that it be as representative
of the public safety community as
possible.836 The member organizations
were selected in part based on their
representation of various sectors of the
public safety community. While some
member organizations may choose to
delegate all decision-making authority
to their PSBL representatives on the
board, others may prefer that their
representatives seek internal approvals
so that the member organization can
assure that the positions taken by its
board representative are reflective of the
organization’s core membership.
Accordingly, the Commission
832 See National Regional Planning Council at
https://www.nrpc.us/index.jsp.
833 Second FNPRM, 22 FCC Rcd at 8091 para. 122.
834 See NRPC Comments at 6.
835 APCO Comments at 22.
836 See 47 CFR 90.523(e)(3).
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tentatively concludes that
representatives of member
organizations, in their service on the
PSBL board, should be permitted
reasonable accommodation to seek
approval of their respective
organization’s leadership. At the same
time, the Commission would expect the
PSST to provide sufficient advance
notice of issues to be decided so that
board members can obtain any
organizational approvals ahead of time,
without causing undue delay to board
actions. The Commission seeks
comment accordingly.
410. Chief Executive Officer. The
Commission agrees with APCO that the
position of Chairman of the PBSL board
of directors should be separated from
the position of Chief Executive Officer
(CEO) because of the very different
responsibilities of the two positions.
The Chairman primarily has
management responsibilities, while the
CEO primarily has charge of day-to-day
operations. Separating these positions
would allow for a discrete focus on two
very different responsibilities, and thus
increased efficiency. Accordingly, the
Commission tentatively concludes that
the Public Safety Broadband Licensee’s
positions of Chairman of the Board and
Chief Executive Officer must be filled by
separate individuals. The Commission’s
proposal would require that the PSST
implement such separation within 30
days of adoption of an Order issuing
final rules in this proceeding. Further,
the Commission proposes that the PSST
may not hire a new individual to fill the
CEO position until the D Block
licensee(s) has made funding available
for the PSBL’s administrative and
operational costs. In recognition of the
separate functions of these roles, the
Commission also proposes that any
individual appointed as CEO cannot
have served on the PSBL executive
committee during the period three years
prior to his or her appointment as CEO.
In this regard, the Commission proposes
that the Public Safety Broadband
Licensee’s bylaws be amended to
include the following provision: ‘‘Duties
of Chief Executive Officer. The CEO
shall have responsibility for the general
supervision and direction of the
business and affairs of the Public Safety
Broadband Licensee, subject to the
control of the Board, and shall report
directly to the Board. No CEO shall have
served on the Public Safety Broadband
Licensee’s Executive Committee for a
period of 3 years prior to appointment.’’
411. Officers. The Commission also
agrees with APCO that some action
should be taken to redress what APCO
describes as a previous ‘‘over-reliance
on the [PSST’s] Chairman/CEO and a
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three-person executive committee (the
chairman, vice-chairman, and secretary/
treasurer),’’ which APCO describes as
having exercised ‘‘a substantial degree
of discretion without sufficient
opportunities for input from other board
members.’’ 837 The Commission does not
agree with APCO, however, that any
such ‘‘over-reliance’’ need be resolved
by reducing the size of the PSBL board
of directors.838 The current members of
the board were appointed with due
consideration, and with particular
attention to the need to establish a board
that is broadly representative of the
public safety community.839 The
Commission believes that any reduction
in the number of board members would
diminish this important objective.
Instead, the Commission tentatively
concludes that the executive committee
should be reformed. Accordingly, the
Commission proposes to require the
PSST board to elect a new executive
committee—i.e., the PSST must elect a
new Chairman, Vice-Chairman, and
Secretary/Treasurer within 30 days of
adoption of an Order issuing final rules
in this proceeding. The Commission
proposes that these executive committee
members: (i) Must be limited to a term
of 2 years; and (ii) may not serve
consecutive terms in the same position.
The Commission further proposes that
no current executive committee member
may be re-elected to the same position
on the committee.840 The Commission
also proposes to prohibit the PSBL from
expanding its executive committee
beyond these three offices. The
Commission seeks comment on these
proposals.
412. Supermajority Voting. The
Commission tentatively concludes that
the Commission will require threefourths supermajority voting on all
major decisions by the PSBL board of
directors. Specifically, for selection of
the CEO and election of officers, the
Commission proposes to require a threefourths vote of board members present
at the board meeting. The Commission
also proposes to require a three-fourths
vote of all board members (not limited
to those present at the board meeting)
for changes in the articles or bylaws,
approval of any contract of a cumulative
Comments at 22.
APCO Comments at 22.
839 See Second Report and Order, 22 FCC Rcd at
15422 para. 374; Order on Reconsideration 22 FCC
Rcd at para. 4; Public Safety and Homeland
Security Bureau and Wireless Telecommunications
Bureau Announce the Four At-Large Members of
the Public Safety Broadband Licensee’s Board of
Directors, Public Notice, 22 FCC Rcd 19475 (PSHSB
2007).
840 Current executive committee members may be
elected to positions on the committee other than the
ones they currently hold.
57821
value exceeding $25,000 per year, and
approval of any expenditure exceeding
$25,000 per item. Both the PSST and
APCO supported supermajority voting
for certain decisions.841 The
Commission believes that requiring a
three-fourths vote, instead of the twothirds majority vote currently required
for most major PSBL board decisions,
will further ensure that the PSBL will
only undertake major actions that have
the broad support of the PSBL’s
representative constituents.
413. Public Board Meetings. The
Commission observes that both the
PSST itself as well as public safety
interests support the opening of PSBL
board meetings to the public.842 The
Commission thus tentatively concludes
that the Commission will require PSBL
board meetings to be open to the public,
except that the board will have a right
to meet in closed session to discuss
sensitive matters.843 Further, the
Commission proposes that the PSBL
must make the minutes of each board
meeting publicly available, including
portions of meetings held in closed
session, but that the published minutes
of closed sessions may be redacted. The
Commission further proposes that the
PSBL must provide the public with no
less than 30 days advance notice of
meetings. Relatedly, the Commission
tentatively proposes to require that the
PSBL present its annual, independently
audited financial report (which is a new
financial reporting obligation the
Commission are proposing elsewhere in
this Third FNPRM) in an open meeting.
The Commission expects that all of
these measures will improve the
efficiency and transparency of the
PSBL’s actions, and seek comment
accordingly.
(ii) Commission and/or Congressional
Oversight
414. Background. With respect to
enhancing oversight of the 700 MHz
Public/Private Partnership, in the
Second FNPRM the Commission sought
comment on how the Commission can
better exercise oversight over the
activities of both the Public Safety
Broadband Licensee and its commercial
partner. The Commission asked, for
example, whether quarterly financial
837 APCO
838 See
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841 See PSST Comments at 46; APCO Comments
at 21.
842 See PSST Reply Comments at 16; APCO
Comments at 21; NATOA et al. Reply Comments at
7.
843 Sensitive matters warranting closed board
meetings would include, for example, matters
involving proprietary or confidential information
provided by vendors or outside parties for the
board’s consideration, and matters involving public
safety or homeland security not normally made
public.
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reporting is adequate, or whether
additional disclosures by the Public
Safety Broadband Licensee or
commercial partner would be
necessary.844 The Commission also
asked what additional measures, if any,
the Commission should take to ensure
the appropriate level of oversight.845
The Commission asked, for example,
whether the Commission should require
Commission approval of certain Public
Safety Broadband Licensee activities,
such as requiring Commission approval
before the Public Safety Broadband
Licensee could enter into contracts of a
particular duration or cumulative dollar
amount.846 The Commission further
asked whether the Commission should
require or reserve the right to have
Commission staff attend meetings of the
voting board.847 In addition to
enhancing Commission oversight of the
700 MHz Public/Private Partnership, the
Commission also sought comment on
how the Commission can ensure an
oversight role for Congress, both in the
operations of the Public Safety
Broadband Licensee and the 700 MHz
Public/Private Partnership.848 The
Commission asked, for example,
whether Congress should designate
some of the Public Safety Broadband
Licensee’s board members.849
415. Comments. The PSST opposed
‘‘requiring [it] to obtain prior FCC
approval for certain decisions’’ because
this ‘‘would cause delays that could
undermine the PSST’s ability to carry
out its duties.’’ 850 The PSST observed
that it is already required to submit
quarterly financial reporting to the
Commission, and to ‘‘the extent that the
Commission believes that additional
oversight is necessary, the PSST can
provide additional reports to the FCC on
its operational goals and actions.’’ 851
The PSST stated that a ‘‘monthly
discussion, or more often if needed,
with the appropriate persons at the FCC
would be [an] effective means to
provide the PSST with guidance and
interpretation of FCC intent * * *
particularly in the early years of its
844 See
Second FNPRM, 23 FCC Rcd at 8068 para.
51.
845 See
Second FNPRM, 23 FCC Rcd at 8068 para.
51.
846 See
Second FNPRM, 23 FCC Rcd at 8068 para.
51.
847 See
Second FNPRM, 23 FCC Rcd at 8068 para.
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51.
848 See
Second FNPRM, 23 FCC Rcd at 8066 para.
48.
849 See
Second FNPRM, 23 FCC Rcd at 8066 para.
48.
850 PSST
Comments at 46.
Comments at 47.
852 PSST Comments at 48.
853 PSST Comments at 48.
operation.’’ 852 The PSST did, however,
support a Commission official serving in
an ex officio capacity on the PSBL
board, and recommended that a
Commissioner serve in that role.853
416. APCO, however, argued that ‘‘the
formal relationship between the
Commission and the PSBL must be
strengthened.’’ 854 Accordingly, APCO
indicated support for ‘‘Commission
oversight, quarterly financial reports,
and periodic audits to ensure that the
PSBL is operating in conformance with
its public responsibilities and
Commission rules,’’ as well as having
‘‘its records be open for public
inspection.’’ 855 APCO also indicated
support for ‘‘a Commission official
serving in an ex officio capacity on the
PSBL board.’’ 856 Most other comments
addressing the issue of Commission
oversight of the PSBL’s activities agreed
that such oversight is necessary and
important.857 AASHTO, however,
warned that ‘‘[i]ncreasing the reporting
activities of the PSBL will have a
significant impact as the cost of
providing reports and documentation
would have to be recovered in
additional fees paid by the network
user.’’ 858
417. With respect to Congressional
oversight, the PSST stated that it
‘‘would welcome Congressional
monitoring’’ but noted that the need for
rapid decision-making ‘‘will of necessity
limit the types of Congressional
oversight that could be mandated.’’ 859
Region 20 indicated reluctance to
mandated Congressional oversight,
however, noting that ‘‘[t]he current
provisions of the [Second Report and
Order] allow for certain ‘‘at-large’’
appointments and if the PSST Board
determines that Congressional
participation is in the best interests of
public safety communications, the
Board should be free to reach out to
847 See
Second FNPRM, 23 FCC Rcd at 8068 para.
51.
848 See
Second FNPRM, 23 FCC Rcd at 8066 para.
48.
849 See
Second FNPRM, 23 FCC Rcd at 8066 para.
48.
850 PSST
Comments at 46.
Comments at 47.
852 PSST Comments at 48.
853 PSST Comments at 48.
854 APCO Comments at 20.
855 APCO Comments at 19.
856 APCO Comments at 20, 24.
857 See NPSTC Comments at 22 (Commission’s
‘‘oversight should be directed to ensure the PSBL’s
process results in the handling of relevant issues,
the opportunity for debate, and the generation of
sound and fair decisions’’); Region 20 Reply
Comments at 12 (‘‘[a]t a minimum, the books and
851 PSST
851 PSST
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members of the Congress as ‘‘at large’’
participants.’’ 860
418. Discussion. Given the proposed
enhancements to the structure and
functioning of the PSBL discussed
elsewhere in this Third FNPRM, the
Commission believes that the
Commission has addressed the principal
concerns regarding oversight of the
PSBL. In addition to affirming and
enhancing the PSBL’s reporting
requirements, the Commission is also
proposing to require the submission of
the PSBL’s proposed annual budget to
the Commission for review and
approval. In this manner, the expected
activities and operations of the PSBL
can be monitored to ensure the PSBL is
staying within its role as representative
of the public safety community. Part
and parcel with those reporting
requirements, the Commission is
proposing to require the PSBL to
establish an audited annual budgeting
process, conducted by an external,
independent auditor, which will
enhance the ability to oversee the
activities and operations of the PSBL.
Further, as discussed elsewhere in this
Third FNPRM, the Commission has
narrowed and clarified the mission and
responsibilities of the PSBL. With
respect to Congressional oversight,
Congress maintains an oversight role
over the Commission’s decisions and
thus the Commission sees no need for
any extraordinary provisions that would
presume to compel Congress into an
oversight role it has not already defined
for itself.
(iii) Role of State Governments
419. The Commission also sought
comment in the Second FNPRM on
whether providing a nationwide,
interoperable broadband network might
be more effectively and efficiently
accomplished by allowing state
governments (or other entities that have
or plan interoperable networks for the
benefit of public safety) to assume
responsibility for coordinating the
participation of the public safety
providers in their jurisdictions.861 To
that end, the Commission asked parties
supporting such action to comment on
the proper relationship between the
state governments and the Public Safety
Broadband Licensee and on the
Commission’s authority to establish
such a role for state governments.862
The Commission asked, for example,
whether the Public Safety Broadband
Licensee should be authorized to choose
860 RPC 20 Reply Comments at 11–12. See also
RPC 33 Comments at 7.
861 Second FNPRM, 23 FCC Rcd at 8068 para. 52.
862 Second FNPRM, 23 FCC Rcd at 8068 para. 52.
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a minimum standard for any public
safety broadband operation, with the
state governments given the
responsibility to work with public safety
providers to implement operations in
their jurisdictions.863 The Commission
further asked whether such an approach
would allow state governments wanting
higher-grade networks to implement
separately these more-advanced
systems, while allowing those wanting
networks at the minimum standard to
avoid what they may consider
unnecessary expenses.864 The
Commission also asked whether state
governments are better situated to
address implementation challenges that
cross public safety jurisdictions (e.g.,
coordinating use by sheriffs
departments in neighboring counties) as
well as intra-jurisdictional challenges
(e.g., coordinating use by the police
versus fire departments), or whether, in
the event different jurisdictions chose
different grades of networks, there
would be a resulting lack of economies
of scale and thus higher equipment
costs for all public safety users.865
420. Comments. Commenters
expressed mixed views on the issue of
allowing states to coordinate the
participation in the shared network by
the public safety providers in their
jurisdictions. ASSHTO, for example,
suggested that while there might be
benefits in having ‘‘[s]tate governments
[ ] assume responsibility for
coordinating the participation of the
public safety providers in their
jurisdictions,’’ the ‘‘networks operated
by states for users other than state
agencies is voluntary and cannot be
impelled.’’ 866 Similarly, NRPC asserted
that ‘‘[s]tates should be utilized in the
development of a nationwide public
safety broadband network to the degree
each state wants to assist and utilize its
resources.’’ 867 NRPC, however, also
emphasized that the Commission
should ‘‘NOT impose any mandates on
states to facilitate, administer or
promote any element associated with a
nationwide public safety broadband
network.’’ 868
863 Second
FNPRM, 23 FCC Rcd at 8068 para. 52.
FNPRM, 23 FCC Rcd at 8068 para. 52.
865 Second FNPRM, 23 FCC Rcd at 8068 para. 52.
866 AASHTO Comments at 11. See also NPSTC
Comments at 22 (‘‘[the] proposal to place in state
governments the operating and policy
responsibilities now committed to the PSBL lacks
any credible indication that it will work.’’);
California Comments at 2 (California, ‘‘no
organization or entity has the legislated authority or
funding necessary to assume the statewide
responsibility’’ for coordinating the participation of
public safety providers in facilitating the
interoperable network in its jurisdiction.).
867 NRPC Comments at 9.
868 NRPC Comments at 9.
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421. A number of commenters argued,
however, that state and local
participation in the development and
management of the network would be
essential. Region 33 stated that ‘‘any
‘system’ without local oversight would
be unmanageable.’’ 869 Wireless RERC
suggested that State Emergency
Communications Committees and Local
Emergency Communications
Committees should offer guidance in the
‘‘development of any strategic public
safety migration plan.’’ 870 Rivada
asserted that ‘‘[b]efore the Commission
can responsibly move forward with a
revised public/private partnership (or
any other resolution of the D-Block and
adjacent public safety spectrum) the
interests of various public safety
agencies at the State, local and Federal
level will all need to be surveyed and
resolved.’’ 871
422. Discussion. While the
Commission appreciates the
relationships that the states have with
the public safety providers in their
jurisdictions, the Commission does not
believe it would be efficient or
beneficial to carve out a specific role for
the states in coordinating their public
safety providers’ participation in the
interoperable shared broadband
network. The Commission expects the
Public Safety Broadband Licensee to
work with all public safety interests,
whether at local, Tribal, state or regional
levels, to ensure that usage of the
interoperable shared broadband network
is coordinated to meet the needs of all
eligible public safety users in the most
efficient manner. Further, the
Commission observes that participation
on the Public Safety Broadband
Licensee’s Board by the National
Governors Association already serves as
a vehicle to ensure that states have
direct input in the Public Safety
Broadband Licensee’s activities.
(iv) Reissuance of the Public Safety
Broadband License and Selection
Process
423. Finally, in light of the potential
changes contemplated in the Second
FNPRM, and the corresponding changes
contemplated with respect to the D
Block, the Commission sought comment
on whether the Commission should
rescind the current 700 MHz Public
Safety Broadband License and seek new
applicants.872 In the event such action
is warranted, the Commission asked
whether the Commission should use the
same procedures as before, i.e.,
869 RPC
33 Comments at 8.
RERC Comments at 6.
871 Rivada Reply Comments at 4.
872 Second FNPRM, 23 FCC Rcd at 8068 para. 53.
870 Wireless
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57823
delegating authority to the Chief, Public
Safety and Homeland Security Bureau
to solicit applications, specifying any
changed criteria that may be adopted
following this Third FNPRM, and
having the Commission select the
licensee.873 The Commission further
asked whether there are other
considerations that should be taken into
account in selecting the licensee.874 In
addition, in light of the need to identify
the licensee quickly to enable the
effective development of the 700 MHz
Public/Private Partnership, the
Commission sought comment as to the
mechanism the Commission should
employ to assign the Public Safety
Broadband License in the event that
there was more than one qualified
applicant.875
424. Comments. With respect to the
issue of rescinding the current PSBL
license and opening a new application
round, the PSST asserted that ‘‘the
Commission should reject any
suggestion [to rescind its license] and
instead work with the organizations
represented on the current PSST Board
to address any major concerns about the
organizational structure and governance
of the organization rather than starting
from scratch.’’876 The PSST also
contended that ‘‘it is our strong belief
that the cost and delay in starting up
another nonprofit, tax-exempt
organization will result in irreparable
damage to the substantial efforts of the
public safety community to establish a
new Public/Private Partnership and
SWBN and creates a substantial risk that
the entire effort to establish a new
SWBN will fail.’’ 877 The PSST noted
that ‘‘there were no other applicants
during the initial window.’’ 878 The
PSST further argued that ‘‘potential
bidders on the D Block may be
discouraged by the uncertainty that
would be added to the process if
interested parties have no idea who will
be representing public safety interests
going forward other applicants.’’ 879
Finally, the PSST argued that ‘‘the PSST
and its individual Board members have
already contributed enormous efforts to
the establishment of the PSST and its
related infrastructure [] and it would be
wasteful to walk away from this
substantial investment when funding
and resources are so scarce.’’ 880 Other
873 Second
FNPRM, 23 FCC Rcd at 8068 para. 53.
FNPRM, 23 FCC Rcd at 8068 para. 53.
875 Second FNPRM, 23 FCC Rcd at 8068 para. 53.
876 PSST Comments at 47. See also PSST Reply
Comments at 16.
877 PSST Reply Comments at 16.
878 PSST Reply Comments at 16.
879 PSST Reply Comments at 16.
880 PSST Reply Comments at 47–48.
874 Second
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commenters also urged the Commission
to reject proposals that advocate
rescinding the Public Safety Spectrum
Trust’s license.881 APCO, however,
asserted that, in order to implement its
suggested modifications to the PSBL’s
structure, APCO is comfortable with
either modification of the PSST’s
articles and bylaws, or rescission of ‘‘the
PSST’s license’’ and selection of ‘‘a new
PSBL.’’ 882
425. Discussion. As a threshold
matter, the Commission tentatively
concludes that the public safety
broadband spectrum should continue to
be licensed on a nationwide basis to a
single Public Safety Broadband
Licensee. However, the Commission
seeks comment on whether the
Commission should license the public
safety broadband spectrum on a regional
basis rather than a nationwide basis.
Further, if the Commission were to
license the public safety broadband
spectrum on a regional basis, the
Commission seeks comment on the
procedures and selection criteria for
assigning such licenses, and how
multiple public safety broadband
licensees would be able to ensure a
nationwide level of interoperability and
otherwise satisfy the roles and
responsibilities of the public safety
broadband licensee the Commission
discusses elsewhere. Assuming that the
Commission adopts its tentative
conclusion to retain the nationwide
Public Safety Broadband Licensee, the
Commission also tentatively concludes
that is unnecessary to rescind the
PSST’s license and reissue the license to
a new licensee in order to implement
the foregoing changes to the PSBL.
Pursuant to section 316(a)(1) of the Act,
the Commission has the authority to
modify ‘‘[a]ny station license * * * if in
the judgment of the Commission such
action will promote the public interest,
convenience, and necessity, or the
provision of this Act.’’ 883 For all of the
reasons set forth in the preceding
discussion, it is the Commission’s
judgment that the tentative changes that
the Commission proposes to the PSBL
will promote the public interest,
convenience, and necessity, as well as
the provisions of the Act. Accordingly,
except as otherwise noted above, the
Commission expects the PSST to
implement the tentative proposals
specific to its structure and internal
881 See, e.g., ComCentric Comments at 3; WFCA
Comments at 1; Oregon Comments at 1; IMSA
Comments at 11; NAEMT Comments at 3; NPSTC
Reply Comments at 6; NASEMSO Reply Comments
at 2; Nextwave Reply Comments at 5; RPC 20 Reply
Comments at 11; ICMA Reply Comments at 2.
882 APCO Comments at 24–25.
883 47 U.S.C 316(a)(1).
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procedures that the Commission has set
forth in this Third FNPRM, within 90
days of publication of the relevant final
rules in the Federal Register.
3. Narrowband Relocation
426. Background. In designating the
lower half of the 700 MHz Public Safety
band (763–768/793–798 MHz) for
broadband communications, the Second
Report and Order consolidated existing
narrowband allocations to the upper
half of the 700 MHz Public Safety band
(769–775/799–805 MHz).884 To
effectuate this consolidation of the
narrowband channels, the Commission
required the D Block licensee to pay the
costs of relocating existing narrowband
radios from TV channels 63 and 68 (at
764–767 MHz and 794–797 MHz), and
the upper one megahertz of channels 64
and 69 (at 775–776 MHz and 805–806
MHz), and capped the disbursement
amount for relocation costs at $10
million.885 The Commission also
cautioned that any narrowband
equipment deployed in channels 63 and
68, or in the upper one megahertz of
channels 64 and 69, more than 30 days
following the adoption date of the
Second Report and Order—i.e., after
August 30, 2007—would be ineligible
for relocation funding.886 In addition,
the Commission prohibited
authorization of any new narrowband
operations in that spectrum, as of 30
days following the adoption date of the
Second Report and Order (i.e., as of
August 30, 2007).887
427. In the Second Report and Order,
the Commission further found that, in
order to maximize the benefits of the
700 MHz nationwide, interoperable
broadband communications network,
700 MHz narrowband public safety
operations then existing under the old
narrowband band plan needed to be
consolidated and cleared no later than
the DTV transition date (i.e., February
17, 2009).888 The Commission required
every public safety licensee impacted by
the consolidation to file a certification
with the Commission no later than 30
days from the effective date of the
Second Report and Order, including
certain information to account for ‘‘preprogrammed narrowband radios that
public safety agencies may have already
taken delivery as of the adoption date of
884 Second Report and Order, 22 FCC Rcd at
15406 para. 322.
885 Second Report and Order, 22 FCC Rcd at
15412 para. 341.
886 Second Report and Order, 22 FCC Rcd at
15412 para. 339.
887 Second Report and Order, 22 FCC Rcd at
15412 para. 339.
888 Second Report and Order, 22 FCC Rcd at
15406 para. 322.
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[the Second Report and Order] and
intend to immediately place into
operation.’’ 889 The Commission
emphasized that such information was
‘‘integral to the success of the relocation
process,’’ and cautioned public safety
entities that failing to file this
information in a timely manner would
result in forfeiture of reimbursement.890
As ‘‘an additional measure to define and
contain the costs that would be entitled
to reimbursement,’’ the Commission
prohibited any new authorizations
outside of the consolidated narrowband
segment, stating that such a prohibition
would ‘‘ensure that the relocation
proceeds in an orderly manner and
without complications stemming from
additional operations being deployed in
spectrum being reallocated.’’ 891
Moreover, as ‘‘an additional means to
ensure the integrity of the relocation
process,’’ the Commission imposed a
$10 million cap based on the best
evidence available in the record at the
time of the Second Report and Order.892
428. Two parties filed petitions
seeking reconsideration of some or all of
the foregoing requirements in the
Second Report and Order.893 Among
other things, these parties challenged
the adequacy of the $10 million cap on
relocation expenses.894 A number of
other parties also supported revising or
eliminating the relocation cap.895
429. One petitioner also asked that the
Commission make clear that parties who
purchased and began to deploy systems
before the August 30, 2007, cut-off date
can continue to deploy those systems
after August 30, and obtain full
reimbursement for the relocation of all
such systems.896 Another party asked
the Commission to modify the Second
Report and Order to permit continued
authorization and deployment of
statewide radio public safety systems
that were in the process of construction
and implementation as of the date of the
Second Report and Order in channels
63 and 68 and the upper one megahertz
of channels 64 and 69 through January
889 Second Report and Order, 22 FCC Rcd at
15411 para. 336.
890 Second Report and Order, 22 FCC Rcd at
15411 para. 337.
891 Second Report and Order, 22 FCC Rcd at
15412 para. 339.
892 Second Report and Order, 22 FCC Rcd at
15412 para. 341.
893 See Virginia Petition for Reconsideration;
Pierce Transit Petition for Reconsideration.
894 See Virginia Petition for Reconsideration;
Pierce Transit Petition for Reconsideration.
895 See National Association of
Telecommunications Officers and Advisors
(NATOA) Comments at 9–11; State of Nebraska
(Nebraska) Opposition at 2; Motorola Comments at
1–7.
896 See generally Pierce Transit Petition for
Reconsideration.
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31, 2009; allow the owner of any such
statewide radio public safety system to
obtain reimbursement for all of its costs
incurred in the installation of such
system; and reconsider the $10 million
cap on rebanding costs.897
430. In the Second FNPRM, mindful
of the desire to provide certainty to
potential bidders as to the relocation
obligation that would attach to the
winner of the D Block spectrum, the
Commission sought comment on
whether the Commission should revise
or eliminate the $10 million cap on
relocation expenses.898 The Commission
asked parties to provide specific data
and cost estimates regarding relocation
expenses, particularly taking into
account the certifications filed in the
docket pursuant to the Second Report
and Order.899
431. Given the proposed re-auction of
the D Block and associated timing, the
Commission also sought comment on
the date by which such relocation must
be completed. In particular, the
Commission asked whether the
Commission should continue to require
that relocation be completed by the DTV
transition date or set an alternative date,
and if so, what such alternate date
should be.900 The Commission also
asked whether the Commission should
allow relocation to occur on a rolling
basis, such that the D Block licensee
would be required to relocate
narrowband operations only as the
broadband network is built out in a
particular market and, if so, how much
notice the D Block licensee should be
required to give to a narrowband
licensee in advance of relocation.901 The
Commission further sought comment on
any other viable mechanism for
facilitating relocation, and the
appropriate timing of such an
approach.902 The Commission also
asked whether the Commission should
retain the requirement that capped costs
be deposited in a trust account to be
administered by the Public Safety
Broadband Licensee or, if the
Commission were to eliminate the cap,
how the trust mechanism would
function.903 With respect to
management of the reimbursement
897 See generally Virginia Petition for
Reconsideration.
898 See Second FNPRM, 23 FCC Rcd at 8111 para.
180.
899 See Second FNPRM, 23 FCC Rcd at 8111 para.
180.
900 See Second FNPRM, 23 FCC Rcd at 8111 para.
181.
901 See Second FNPRM, 23 FCC Rcd at 8111 para.
181.
902 See Second FNPRM, 23 FCC Rcd at 8111 para.
181.
903 See Second FNPRM, 23 FCC Rcd at 8111 para.
181.
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process, the Commission asked whether
the Commission should continue to
require that the Public Safety Broadband
Licensee manage the reimbursement
process for the narrowband licensees.904
In the event that maintaining such
requirement is appropriate, the
Commission sought comment on
whether the Commission should require
that public safety entities seeking
reimbursement provide detailed cost
information to the Public Safety
Broadband Licensee, what such cost
information should entail, and whether
the Public Safety Broadband Licensee
should be afforded discretion in
assessing the soundness of the cost
estimates.905 The Commission also
asked whether the Public Safety
Broadband Licensee can leverage its
status as a nationwide license holder to
negotiate terms with equipment and
technology vendors to relocate multiple
narrowband operations, and thus
achieve economies of scale.906 The
Commission further asked whether the
Public Safety Broadband Licensee
should have recourse to the Commission
if it determines the cost estimates
provided by individual public safety
entities, including those passed through
by technology or equipment vendors,
are unreasonable.907
432. With respect to the August 30,
2007 cut-off date established in the
Second Report and Order for
narrowband deployments outside of the
consolidated narrowband spectrum, the
Commission sought comment on
whether extension of that deadline is
inappropriate, and any other issue
related to the reconsideration petitions
filed by Virginia and Pierce Transit.908
The Commission received a number of
comments addressing the various issues
associated with the narrowband
relocation, as detailed below.
(i) February 17, 2009, Relocation
Deadline
433. Comments. With respect to the
deadline for relocating narrowband
operations that were in place prior to
August 30, 2007, several commenters
agree that the Commission should
extend the February 17, 2009, deadline
for such action adopted in the Second
Report and Order.909 The PSST, for
904 See
Second FNPRM, 23 FCC Rcd at 8111 para.
181.
905 See
Second FNPRM, 23 FCC Rcd at 8111 para.
181.
906 See
Second FNPRM, 23 FCC Rcd at 8111 para.
181.
907 See
Second FNPRM, 23 FCC Rcd at 8111 para.
181.
908 See
Second FNPRM, 23 FCC Rcd at 8111 para.
182.
909 See, e.g., Ada County Sherriff’s Office
Comments at 1; APCO Comments at 39; NRPC
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57825
example, stated that, ‘‘[s]ince the date
for the D-Block re-auction has not yet
been set, and since the successful
auction will be followed by the NSA
negotiation process, it does not seem
realistic for the FCC to retain the
February 17, 2009 completion date.’’ 910
The PSST recommended instead that
the narrowband relocation deadline be
set ‘‘twelve months after funding from
the D Block winner becomes
available.’’ 911
434. Motorola agreed with the PSST
that ‘‘a new deadline for relocation be
established twelve months after funding
from the D Block winner becomes
available.’’ 912 Motorola further asserted
that such revised deadline would
‘‘provide[ ] a more realistic time frame
to effectuate relocation than the
Commission’s previously adopted
policies.’’ 913 AASHTO argued that ‘‘the
relocation of existing narrowband users
should be grandfathered until there are
funding mechanisms in place to
reimburse the public safety agencies for
the costs involved in returning or
replacing equipment incapable of being
returned.’’ 914 AASHTO also supported
using ‘‘rolling dates for the relocation of
existing users coupled with the
availability of the network in their
area.’’ 915
435. Discussion. As indicated above,
in the Second Report and Order the
Commission required narrowband
operations that had already been
deployed under the prior 700 MHz band
plan on channels 63 and 68, and the
upper one megahertz of channels 64 and
69, to be relocated to and consolidated
within the new narrowband channels (at
769–775 MHz/799–805 MHz) by the
DTV transition deadline of February 17,
2009.916 Implicit in the Commission’s
decision to adopt February 17, 2009, as
the relocation deadline were the
assumptions that Auction 73 would
yield a national D Block licensee and
that the NSA would be successfully
negotiated and approved with sufficient
time to effect the narrowband
relocations prior to February 17, 2009—
the deadline by which the public safety
broadband frequency bands must be
vacated by current analog television
operations. Those assumptions did not
Comments at 7; NPSTC Comments at 23; Motorola
Comments at 21; Louisiana Comments at 2;
TeleCommUnity Comments at 7; Eads Comments at
4; Lencioni Comments at 1.
910 PSST Comments at 51–52.
911 PSST Comments at 52.
912 Motorola Reply Comments at 6.
913 Motorola Reply Comments at 6.
914 AASHTO Comments at 13.
915 AASHTO Comments at 13.
916 Second Report and Order, 22 FCC Rcd at
15410 para. 332.
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materialize and, therefore, an extension
of the current February 17, 2009,
deadline for completing the relocation
of all narrowband operations to the
consolidated narrowband channels
appears warranted.
436. In determining a new
narrowband relocation deadline, the
Commission continues to believe that a
uniform deadline is required to allow
both the D Block licensee and the public
safety community to concentrate on
deploying a shared network in the 700
MHz public safety broadband spectrum,
unconstrained by the presence of
narrowband operations. While the
Commission understands that the
shared broadband network will be
constructed over time, and may reach
some areas of the country sooner than
others, the Commission believes that
tying narrowband relocations to actual
or planned buildout of the network on
a rolling or otherwise piecemeal basis
would be impractical and inefficient,
and could cause delays in network
deployment. The Commission agrees
with the PSST that a single relocation
deadline tied to the availability of
funding is the most prudent course.917
Accordingly, the Commission proposes
to extend the narrowband relocation
deadline to twelve months from the date
upon which narrowband relocation
funding is made available by the D
Block licensee(s), which as explained
below, will be no later than the date
upon which the executed NSA(s) is
submitted to the Commission for
approval.
jlentini on PROD1PC65 with PROPOSALS2
(ii) $10 Million Cap
437. Comments. As to the $10 million
cap on narrowband relocation cost
reimbursement, several commenters
argued that the $10 million cap is
inadequate.918 The PSST, for example,
recommended that that the Commission
‘‘replace the current $10 Million cap on
the D Block licensee’s reimbursement
obligation with a cap of $75
Million.’’ 919 According to the PSST,
‘‘the current cap substantially
underestimates the funds needed to
address this situation based on [ ]
extensive work with the affected public
safety agencies, equipment vendors and
with organizations such as the NPSTC
that have committed time and resources
toward identifying a cost-effective
917 See PSST Comments at 52. See also Motorola
Reply Comments at 6; NPSTC Comments at 24.
918 See, e.g., Louisiana Comments at 2; APCO
Comments at 39; Pierce Transit Comments at 5;
NATOA et al Comments at 16; Virginia Comments
at 5; NPSTC Comments at 24; Eads Comments at 3;
Lencioni Comments at 1; RPC 33 Comments at 20;
RPC 20 Reply Comments at 11.
919 PSST Comments at 53.
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solution.’’ 920 The PSST also observed
that ‘‘it has been determined that the
original cost estimate failed to include
one critical equipment category: the
vehicular repeater,’’ the retuning of
which ‘‘will significantly increase the
total relocation cost.’’ 921 The PSST
further asserted that its proposed $75
million cap ‘‘is but a fraction of the
anticipated cost of purchasing the
spectrum at auction and deploying and
operating the SWBN [and] not an
amount that should deter an otherwise
interested D Block bidder.’’ 922
438. The Ada County Sheriff’s Office
argued that, ‘‘the $10M cap * * * is far
too low for the actual cost of relocating
users to the new band.’’ 923 According to
Ada County Sheriff’s Office, relocation
funding should instead be ‘‘based upon
actual relocating costs for each agency
affected.’’ 924 The Commonwealth of
Virginia argued that ‘‘no ‘cap’ on public
safety relocation is appropriate given
the very substantial proceeds which will
be realized from this D Block auction
* * * the commercial users should pay
the full relocation costs of the public
safety entities, who generally lack
budget flexibility or surplus funding to
allow them to absorb these costs.’’ 925
439. Pierce Transit argued that ‘‘the
Commission to this day has no
information on which it can rely with
any reasonable degree of confidence, as
to what the incumbent public safety
licensees’ aggregate relocation costs will
be,’’ and ‘‘imposing the $10 million cap,
without having any concrete, verifiable
information on the true cost of
reconfiguring incumbent operations,
raises the specter that the dozens of
affected public organizations may be
subject to either pro rata or first come,
first serve reimbursements that cannot
hope to fully compensate affected
entities for their full relocation
costs.’’ 926
440. Motorola observed that ‘‘[t]he
costs of relocation vary widely,’’ and
thus ‘‘[a] complete and accurate
estimate of relocation costs can only be
created by soliciting information
directly from individual public safety
agencies as relocation costs will vary by
equipment and agency.’’ 927 Motorola
920 PSST Comments at 53. See also, Motorola
Reply Comments at 5.
921 PSST Comments at 53.
922 PSST Comments at 53.
923 Ada County Sheriff’s Office Comments at 1.
924 Ada County Sheriff’s Office Comments at 1.
925 Commonwealth of Virginia Comments at 5–6.
926 Pierce Transit Comments at 5–6.
927 Motorola Comments at 19. Motorola asserted
in its Reply Comments that its initial estimate on
narrowband relocation costs ‘‘did not include any
management costs or other costs that licensees and
the parties actually performing the reconfiguration
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further argued that in order to collect
this information, ‘‘the FCC should
require public safety agencies seeking
reimbursement to provide detailed cost
information to the PSBL or the FCC
directly within 90 days from the date of
a Commission Public Notice that would
start this process.’’ 928
441. The National Association of
Telecommunications Officers and
Advisors et al. asserted that ‘‘[t]he cost
of relocation must be borne by the D
Block licensee, and the timing for
accomplishing this task must be more
attuned to the timing under which the
D Block licensee will be able to make
use of the spectrum.’’ 929
442. Discussion. The Commission
agrees with the majority of commenters
who suggested that the $10 million cap
on narrowband relocation costs to be
reimbursed by the D Block licensee may
be inadequate to fully reimburse public
safety entities for the likely costs of
relocation. The Commission adopted the
$10 million cap in the Second Report
and Order based upon the record
received in response to the preceding
700 MHz FNPRM, which sought
information regarding both the number
of narrowband radios deployed and in
use, and the costs involved in
consolidating the narrowband
channels.930 The Commission received
no information regarding the costs of
funding relocation except for a response
from Motorola, in which it estimated
750,000–800,000 radios currently
deployed and a relocation cost of
approximately $10 million.931
443. Since the Commission adopted
the Second Report and Order, the
Commission has received and reviewed
additional information on the number
and types of equipment deployed in the
700 MHz band, in the form of the
certifications from public safety
licensees regarding the number of
handsets, base stations and repeaters
that they had in operation as of August
30, 2007.932 The Commonwealth of
may determine are appropriate and reasonable.’’
Motorola Reply Comments at 5.
928 Motorola Comments at 19.
929 NATOA et al. Reply Comments at 9.
930 Implementing a Nationwide, Broadband,
Interoperable Public Safety Network in the 700
MHz Band; Development of Operational, Technical
and Spectrum Requirements for Meeting Federal,
State and Local Public Safety Communications
Requirements Through the Year 2010, WT Docket
Nos. 06–150, 01–309, 03–264, 06–169, 96–86, CC
Docket No. 94–102, PS Docket No. 06–229, Report
and Order and Further Notice of Proposed
Rulemaking, 22 FCC Rcd 8064, 8159 para. 264
(2007) (700 MHz Further Notice).
931 See Second Report and Order, 22 FCC Rcd at
15410 para. 333.
932 See Second Report and Order, 22 FCC Rcd at
15411 paras. 336, 337; Public Safety and Homeland
Security Bureau Announces an October 23, 2007
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Virginia estimates its costs of relocation
at $48 to $100 per handset, $1,000 per
repeater unit, and $3,000 per base
station.933 Similarly, Motorola estimates
the cost of relocation for a mobile/
portable unit would be $100, and the
cost for a base transmitter site would be
$3,000.934 These costs also are
consistent with the Commission’s
experience with rebanding efforts in the
800 MHz band. Based on the
Commission’s review of the
certifications filed, and using the
maximum per-unit estimates suggested
by the Commonwealth of Virginia, the
Commission calculates the cost of
relocating equipment that public safety
licensees have certified as being in
operation by August 30, 2007, at
approximately $23.6 million.935 This
figure also assumes that every handset
and transmitter in operation as of the
cut-off date would require relocation
reimbursement. Moreover, while not all
of the entities that have sought waivers
of the August 30, 2007, cut-off for new
narrowband deployments outside the
consolidated channels have sought
reimbursement for the costs of
relocating such equipment, the
Commission notes that even if the
Commission assumed full
reimbursement for each waiver
requested, taking such action would add
approximately $3 million to the
Commission’s revised $23.6 million
relocation cost estimate.936 Thus,
Deadline for Filing 700 MHz Relocation
Certification Information, PS Docket No. 06–229,
WT Docket No. 96–86, Public Notice (PSHSB 2007).
933 Virginia Petition for Reconsideration at 10.
Virginia suggests that the Commission reopen the
record for more information on costs. Id. at 11. As
the Commission has explained, parties have already
had ample notice and opportunity to submit cost
information into the record in this proceeding,
including a call again for such information in the
Second FNPRM. See Second FNPRM, 23 FCC Rcd
at 8111 para. 180. Moreover, in light of the
information received through the certification
process, the Commission finds there is no need to
reopen this issue.
934 Motorola June 2007 Ex Parte at 2–3.
935 The Commission review of these certifications
has identified approximately: 100,658 mobiles,
6,511 vehicular repeaters, 3,180 control stations,
and 1,170 base stations.
936 This $3 million figure represents the aggregate
costs that would apply to relocate the subject
waiver narrowband equipment that was contracted,
paid for and received to be deployed in the nonconsolidated narrowband channels (i.e., in the 764–
767/775–776 MHz and 794–797/805–806 MHz
frequency bands) prior to the August 10, 2007,
release date of the Second Report and Order only.
In the Commission Virginia Waiver Order, the
Commission determined that ‘‘[i]t is in the public
interest, therefore, to provide interim waiver relief
for continued deployment outside of the
consolidated narrowband channels where there has
been a showing of potential public harm and there
is evidence of a comprehensive 700 MHz
deployment plan that predates August 30, 2007 for
which equipment has been received and/or
deployed.’’ Request for Waiver of Commonwealth of
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including both the equipment certified
as eligible for reimbursement under the
Second Report and Order and
equipment permitted to be deployed
after the August 30, 2007, cut-off date
pursuant to a waiver, total
reimbursement liability for the D Block
licensee(s) would stand at
approximately $26.6 million.937
444. In light of the foregoing, the
Commission tentatively proposes to cap
the narrowband relocation
reimbursement costs for which the D
Block licensee(s) would be obligated to
pay at $27 million.938 The Commission
emphasizes that, based upon the entire
record before us, this figure should be
more than sufficient to ensure that all
public safety entities are fully
reimbursed their costs for relocating
their narrowband systems to the
consolidated narrowband channels.
This figure includes generous
assumptions, using maximum per unit
costs and assuming every handset, base
station and vehicle repeater, including
those that are the subject of waiver
requests, would require relocation
reimbursement. To account for the
possibility that the D Block auction
could result in the issuance of regional
licenses to more than one regional
licensee, the Commission proposes
setting individual caps for each RPC
region based upon the certification and
waiver request data before us, with the
aggregate cap remaining at $27 million.
The proposed break-down for the cap
for each region is set forth in Appendix
C to this Third FNPRM.939 The
Commission proposes that each regional
D Block licensee would be responsible
for paying the cost of narrowband
relocation within its region(s). In the
event that one or more D Block regional
licenses remains unsold, the
Commission proposes that the cost of
relocating 700 MHz narrowband
facilities in such region(s) would be
prorated among the remaining D Block
licensees.
Virginia, PS Docket No. 06–229, WT Docket No. 96–
86, Order, at para. 7.
937 To be clear, this amount represents the
aggregate hard costs directly associated with
modifications necessary to implement the
relocation of base stations, mobiles and portables,
and not for any unrelated improvements.
938 The Commission observe that there is no
substantiation in the record for the PSST’s proposed
reimbursement cap of $75 million.
939 In instances where a state narrowband system
operates in more than one RPC region, the
Commission proposes that the state provide the
PSBL with data concerning the location of its
narrowband equipment so that the PSBL can
apportion the total reimbursement amount to be
paid by the respective D Block licensee for each
region.
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(iii) August 30, 2007
57827
Cut-off Date
445. Comments. With respect to the
August 30, 2007, cut-off date for
narrowband deployments outside of the
consolidated narrowband spectrum,
several commenters proposed that the
cut-off date should be extended.940 The
Commonwealth of Virginia, for
example, asserted that, ‘‘any absolute
August 30, 2007 cutoff date was
inappropriate for systems which had
already entered into contractual
commitments for system deployment as
of the date of the Second Report and
Order * * * any August 30, 2007 date
must apply both to equipment installed
as of that date, and contracted for as of
that date.’’ 941 Tyco suggested that ‘‘the
Commission leniently grant ‘case-bycase’ waivers for narrowband
deployments to ensure the proper
function of mission-critical
communication systems.’’ 942 According
to Tyco, ‘‘[s]uch time extensions,
coupled with the increased funding,
will help to avoid undue burdens on
existing public safety users.’’ 943
446. The PSST, however, argued that
the Commission should ‘‘maintain the
August 30, 2007 deadline for equipment
whose relocation costs will be
reimbursable.’’ 944 The PSST asserted
that it ‘‘is well aware of the difficulties
this presents for certain licensees, but []
sees no reasonable alternative that
would not seriously undermine the
deployment of the SWBN in a timely
fashion.’’ 945 The Region 33 (Ohio) 700
MHz Regional Planning Committee
agreed that the date should not be
changed, stating, ‘‘[t]hat was about 10
months ago and agencies have had to
make adjustments in their rollout of the
affected frequencies. To ask them to
change the plan again would be doing
them a disservice.’’ 946
447. The Virginia Information
Technologies Agency (‘‘VITA’’) favored
an approach ‘‘that allows for both a post
August 30, 2007 deployment strategy
and a process that allows for those units
deployed after the August 30, 2007
deployment date to have access to
additional relocation funding
opportunities to move them to the
consolidated band plan in a uniform
940 See, e.g., Louisiana Comments at 2; Pierce
Transit Comments at 6; Motorola Comments at 21;
TeleCommUnity Comments at 6; Eads Comments at
4.
941 Virginia Comments at 10. See also Motorola
Reply Comments at 7.
942 TE M/A–COM Comments at 9.
943 TE M/A–COM Comments at 9.
944 PSST Comments at 52.
945 PSST Comments at 52.
946 RPC 33 Comments at 20.
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manner.’’ 947 According to VITA, such
approach would result in ‘‘a congruent
process that allows for uniform
deployment, band relocation and
relocation funding.’’ 948
448. Discussion. As indicated, in the
Second Report and Order, the
Commission prohibited new
narrowband operations outside of the
consolidated narrowband blocks as of
30 days following the adoption date of
the Second Report and Order—i.e., as of
August 30, 2007.949 The Commission
further required every public safety
licensee impacted by such consolidation
to file a certification with the
Commission identifying narrowband
deployment information to account for
pre-programmed narrowband radios that
public safety agencies may have already
taken delivery as of the adoption date of
the Second Report and Order and which
they intended to immediately place into
operation.950 The Commission
emphasized that such information was
‘‘integral to the success of the relocation
process,’’ and cautioned public safety
entities that failing to file this
information in a timely manner would
result in forfeiture of reimbursement.951
The primary purposes behind the
adoption of this cut-off date and
associated certification requirements
were to clearly define and contain the
costs that would be entitled to
reimbursement, and to ensure that the
relocation of narrowband operations
would proceed in an orderly manner
and without complications stemming
from additional operations being
deployed in spectrum being reallocated
for broadband use.952 The Commission
made clear that public safety entities
could place into operation narrowband
equipment in the consolidated
narrowband blocks 769–775 and 799–
805 MHz.953
449. As advocated by the PSST and
others,954 the Commission tentatively
concludes that the existing August 30,
2007, cut-off date should not be
changed. The underlying necessities of
adopting this date—containing
relocation costs, encouraging
narrowband deployment in the
consolidated narrowband channels and,
jlentini on PROD1PC65 with PROPOSALS2
947 VITA
Comments at 5.
948 VITA Comments at 5.
949 Second Report and Order, 22 FCC Rcd at
15406, 15412 para. 339.
950 Second Report and Order, 22 FCC Rcd at
15406, 15411 para. 336.
951 Second Report and Order, 22 FCC Rcd at
15406, 15411 para. 337.
952 Second Report and Order, 22 FCC Rcd at
15406, 15412 para. 339.
953 Second Report and Order, 22 FCC Rcd at
15406, 15412 para. 339.
954 See PSST Comments at 52; RPC 33 Comments
at 20.
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more generally, carrying out a swift and
thorough narrowband relocation process
in order to quickly and efficiently
establish the nationwide, interoperable
public safety broadband network—have
not changed since its adoption in the
Second Report and Order. The
Commission appreciates the
Commonwealth of Virginia’s arguments
that the August 30, 2007, cut-off date
may have been inappropriate in cases
where entities already entered into
contractual commitments for systems
prior to the adoption of the Second
Report and Order.955 However, based
upon the petitions seeking waiver of
this cut-off date that the Commission
has received thus far, it appears that
relatively few entities fall into this
category and the Commission believes
such individualized determinations are
best made on a case-by-case basis
through the waiver process.956
450. The Commission recognizes,
however, that while the waiver process
has thus far provided continuing
operating authority beyond the August
30, 2007, cut-off deadline for equipment
contracted for prior to the adoption of
the Second Report and Order, a decision
as to whether costs for relocating
equipment deployed after this date
could be reimbursed was deferred until
the outcome of this proceeding.957
Accordingly, the Commission
tentatively concludes that for those
parties granted waiver relief to date, and
seeking reimbursement for relocating
equipment deployed pursuant to such
waiver, the costs for relocating such
equipment will be eligible for
reimbursement by the D Block licensee.
In this regard, the Commission would
delegate authority to the PSHSB to grant
such relief. The Commission also
tentatively concludes that the PSHSB,
acting under delegated authority, may
grant similar relief with respect to
pending waiver requests, so long as the
request meets the criteria the
Commission has established for granting
waiver authority to deploy narrowband
systems after the August 30, 2007 cutoff date—i.e., where there has been a
showing of potential public harm and
955 See
Virginia Comments at 10.
establishing the prohibition on new
narrowband operations after August 30, 2007, it was
not the Commission’s intention to create hardship
or delay systems needed to protect the safety of life
and property, and the Commission has provided
interim waiver relief to various public safety
entities for continued deployment outside of the
consolidated narrowband channels where there has
been a showing of potential public harm and there
is evidence of a comprehensive 700 MHz
deployment plan that predates August 30, 2007 for
which equipment has been received and/or
deployed. See Virginia Waiver Order at para. 7.
957 See, e.g., Virginia Waiver Order at para. 8.
956 In
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there is evidence of a comprehensive
700 MHz deployment plan that predates
August 30, 2007, for which equipment
has been received and/or deployed. As
observed above, the Commission
calculates that the total cost of
relocating such equipment is
approximately $3 million, and thus
there would be sufficient funding
available for waiver applicants meeting
these criteria. The Commission also
tentatively concludes that, as of the
release date of this Third FNPRM, the
Commission will not accept any new
waiver requests to deploy narrowband
equipment outside of the consolidated
narrowband blocks, or amendments to
pending waiver requests that would
increase the number of narrowband
radios that would require relocation
reimbursement. The Commission
proposes taking this action in the
interests of ensuring certainty with
respect to the total relocation costs and
in recognition of the fact that any parties
requesting relief would already have
submitted waiver requests.
(iv) Funding Mechanism
451. Comments. Most commenters
addressing the issue of how the
narrowband relocation funding should
be processed agreed that the source of
such funding should be the D Block
licensee and the administration of such
funding should be handled by the
Public Safety Broadband Licensee.
Motorola, for example, asserted that, ‘‘if
the Commission proceeds with a Public/
Private Partnership, once the D-Block is
successfully auctioned and appropriate
Network Sharing Agreements are
executed, the D-Block licensee(s) should
be required to deposit the
reimbursement funds into a trust fund
administered by the PSBL.’’ 958
452. The State of Louisiana suggested
‘‘a process in which Louisiana and other
public safety agencies impacted by the
700 MHz narrowband reconfiguration
can develop and provide actual cost
estimates for the equipment that we
have already deployed, and that now
needs to be relocated per the new
narrowband plan.’’ 959 Additionally, the
State of Louisiana favored making the
PSST ‘‘the central clearing point for
gathering these cost estimates from all
affected public safety agencies.’’ 960
453. APCO asserted that ‘‘the
Commission should retain the
requirement that the D Block licensee
pay the cost of relocating narrowband
licensees,’’ because ‘‘regardless of any
public/private partnership, the D Block
958 Motorola
Comments at 20.
Comments at 2.
960 Louisiana Comments at 2.
959 Louisiana
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jlentini on PROD1PC65 with PROPOSALS2
licensee will benefit from the
reconfiguration of the 700 MHz band as
it eliminates a potential interference
problem.’’ 961 APCO further stated,
however, that the ‘‘Commission should
consider relieving the PSBL of the
responsibility of managing the
relocation funding,’’ because ‘‘it adds a
function unrelated to the PSBL’s core
activity, and deepens its reliance on
outside contractors for which it lacks
the funds to support.’’ 962 APCO
contended that ‘‘the Commission should
[instead] appoint a third party (as it did
with the 800 MHz Transition
Administrator) or require the D Block
licensee to retain the services of an
entity that will manage the process.’’ 963
NPSTC opposed APCO’s position on
removing the PSBL from responsibility
for overseeing narrowband relocations,
asserting that such action would be a
‘‘set back to an important facet of the
Commission’s decision to realign the
700 MHz spectrum and create a public
private partnership to deploy and
manage a nationwide broadband
network.’’ 964 NPSTC further argued that
‘‘[t]he PSBL’s work with regard to the
relocation of 700 MHz narrowband
incumbents demonstrates tangibly not
only its dedication to the Commission’s
decisions but its ability to work with the
often competing interests.’’ 965
454. Discussion. In the Second Report
and Order, the Commission required
that the Upper 700 MHz Band D Block
licensee pay the costs associated with
relocating public safety narrowband
operations, in recognition of the
significant benefits that will accrue to
the D Block licensee.966 These
fundamental benefits would not change
under the 700 MHz Public/Private
Partnership construct the Commission is
tentatively proposing here—whether
such partnership is implemented on a
regional or nationwide basis. Further,
bidders for the D Block licenses will be
able to factor the prospective cost of
narrowband relocation into their
auction bids. Accordingly, the
Commission tentatively concludes that
the Commission will retain the
requirement that the Upper 700 MHz
Band D Block nationwide licensee, or
regional licensees, as determined by the
auction, must pay the costs associated
with relocating public safety
narrowband operations to the
consolidated narrowband channels.
961 APCO
Comments at 39.
Comments at 39.
963 APCO Comments at 39.
964 NPSTC Reply Comments at 15.
965 NPSTC Reply Comments at 15.
966 Second Report and Order, 22 FCC Rcd at
15336 para. 120, 15411 para. 336.
962 APCO
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20:35 Oct 02, 2008
Jkt 217001
455. In terms of funding mechanics,
the Commission also continues to
believe that the Public Safety Broadband
Licensee is best suited to administer the
relocation process consistent with the
requirements and deadlines set forth
herein.967 The Public Safety Broadband
Licensee is composed of board members
with significant experience and
expertise involved with assuming this
role and in fact already has
demonstrated efforts working on the
narrowband relocation issues.968
456. The Commission reiterates that
under the Commission’s proposal the D
Block licensee(s’) reimbursement
obligation will be limited to the
minimum ‘‘hard’’ costs directly
associated with modifications necessary
to implement the relocation of base
stations, mobiles and portables, and will
not extend to any ‘‘soft’’ costs, such as
person-hours expended in effecting
such modifications, or costs associated
with unrelated improvements.969 The
Commission also will not permit such
funding to cover costs associated with
any modifications that may be necessary
to the Computer Assisted PreCoordination Resource and Database
(CAPRAD) system or other programs
used by Regional Planning Committees
to assign channels, or to any costs
associated with amendments to regional
plans or narrowband licenses.970
457. The Commission understands
that the Public Safety Broadband
Licensee will incur administrative costs
in administering the relocation process.
In this respect, the PSBL may recover
such costs along with its other
administrative and operating costs
through the D Block licensee(s) funding
mechanisms described elsewhere in this
Third FNPRM.
458. The Commission also proposes to
retain the narrowband relocation
implementation process developed in
the Second Report and Order, with
conforming provisions to address the
possibility of regional licensing. Under
this approach, the Commission will
require the winning bidder(s) for the D
Block license(s) and the Public Safety
Broadband Licensee jointly to submit
for Commission approval a narrowband
relocation plan(s) within 30 days
following the NSA Negotiation
Commencement Date.971 If the D Block
is licensed on a regional basis, the
967 Second Report and Order, 22 FCC Rcd at
15413–414, 15426–427 paras. 343–44, 383.
968 See, e.g., PSST Comments at 53.
969 Second Report and Order, 22 FCC Rcd at
15411 para. 338.
970 Second Report and Order, 22 FCC Rcd at
15411 para. 338.
971 Second Report and Order, 22 FCC Rcd at
15412 para. 340.
PO 00000
Frm 00081
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57829
Public Safety Broadband Licensee and
regional D Block license winners would
jointly submit for Commission approval
separate narrowband relocation plans
covering each region within 30 days
following the NSA Negotiation
Commencement Date. If the D Block is
licensed on a regional basis, but not all
regional licenses are sold at auction, the
Public Safety Broadband Licensee will
be solely responsible for submitting a
separate narrowband relocation plan
covering each unsold region for
Commission approval within 30 days
following the NSA Negotiation
Commencement Date. The nationwide
narrowband relocation plan, or regional
narrowband relocation plans, as
applicable, would address the process
and schedule for accomplishing
narrowband relocation, including
identification of the 700 MHz
equipment vendor(s), the make and
model numbers of the equipment to be
relocated and the relocation cost
estimates provided by such vendor(s)
(on that vendor’s letterhead),
identification of equipment vendors or
other consultants that would perform
the necessary technical changes to
handsets, vehicle repeaters, and base
stations, and a detailed schedule for
completion of the relocation process for
every radio and base station identified
in the certifications the Commission has
previously required and for narrowband
equipment operating under previously
granted waivers.972 The plan(s) also
would specify the total costs to be
incurred for the complete relocation
process.973
459. If the D Block auction results in
a single nationwide D Block license
winner, that party would be required,
no later than the date upon which the
executed NSA is submitted to the
Commission, to deposit the total cost
amount identified in the narrowband
relocation plan, as approved by the
Chief of the Public Safety and
Homeland Security Bureau, into a trust
account established by the Public Safety
Broadband Licensee, to finance the
narrowband relocation.974 If the D Block
972 Second Report and Order, 22 FCC Rcd at
15412 para. 340.
973 Second Report and Order, 22 FCC Rcd at
15412 para. 340.
974 Second Report and Order, 22 FCC Rcd at
15412 para. 343. As the Commission further
indicated in the Second Report and Order, and
which the Commission tentatively proposes to
continue to follow, the trust account established by
the Public Safety Broadband Licensee would be for
the benefit of public safety licensees being
relocated, with the Public Safety Broadband
Licensee acting as trustee of such account. The
Public Safety Broadband Licensee would not be
permitted to draw on this account until the D Block
license(s) is granted to the D Block auction
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Federal Register / Vol. 73, No. 193 / Friday, October 3, 2008 / Proposed Rules
auction results in one or more regional
D Block license winners, that party(ies)
will similarly be required, no later than
the date upon which the executed NSA
is submitted to the Commission, to
deposit the total cost amount identified
in the narrowband relocation plan(s)
that it, together with the Public Safety
Broadband Licensee, submitted to the
Commission into a trust account
established by the Public Safety
Broadband Licensee, to finance the
narrowband relocation. In the event that
the D Block is licensed on a regional
basis, but not all regional licenses are
sold at auction, the narrowband
relocation costs associated with any
such unsold region (identified in the
individual narrowband relocation plans
submitted for each such region by the
Public Safety Broadband Licensee) will
be borne on a pro rata basis by all the
regional D Block license winners. In this
latter case, the Commission will
delegate authority to the Public Safety
and Homeland Security Bureau to
determine and identify in a public
notice the amount each D Block regional
licensee is required to deposit into the
narrowband relocation trust account
established by the Public Safety
Broadband Licensee.
IV. Procedural Matters
A. Initial Regulatory Flexibility Analysis
jlentini on PROD1PC65 with PROPOSALS2
460. Section 213 of the Consolidated
Appropriations Act 2000 provides that
the Regulatory Flexibility Act (RFA), 5
U.S.C. 603, shall not apply to the rules
and competitive bidding procedures for
frequencies in the 746–806 MHz
Band,975 which includes the frequencies
of both the D Block license and the 700
MHz public safety broadband and
narrowband spectrum. Accordingly, the
Commission has not prepared an Initial
Regulatory Flexibility Analysis in
connection with the Third FNPRM.
winner(s), and then would be limited to using these
funds solely for relocating eligible narrowband
operations consistent with the requirements and
limitations set forth herein. The Public Safety
Broadband Licensee would then be responsible for
implementing the relocation plan, including
administering payment of relocation funds to
equipment vendors, and ensuring that all affected
licensees are relocated in accordance with the
relocation schedule contained in the relocation plan
as approved by the Chief of the Public Safety and
Homeland Security Bureau. See id.
975 In particular, this exemption extends to the
requirements imposed by Chapter 6 of Title 5,
United States Code, Section 3 of the Small Business
Act (15 U.S.C. 632) and Sections 3507 and 3512 of
Title 44, United States Code. Consolidated
Appropriations Act 2000, Pub. L. No. 106–113, 113
Stat. 2502, Appendix E, Sec. 213(a)(4)(A)–(B); see
145 Cong. Rec. H12493–94 (Nov. 17, 1999); 47
U.S.C.A. 337 note at sec. 213(a)(4)(A)–(B).
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20:35 Oct 02, 2008
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B. Initial Paperwork Reduction Act
Analysis of 1995 Analysis
461. This document contains
proposed new or modified information
collection requirements. The
Commission notes, however, that
Section 213 of the Consolidated
Appropriations Act 2000 provides that
rules governing frequencies in the 746–
806 MHz Band, which encompass the
spectrum associated with both the D
Block license and the 700 MHz public
safety broadband and narrowband
spectrum, become effective immediately
upon publication in the Federal
Register without regard to certain
sections of the Paperwork Reduction
Act.976 The Commission is therefore not
inviting comment pursuant to the
Paperwork Reduction Act on any
information collections proposed in this
document.
C. Other Procedural Matters
1. Ex Parte Presentations
462. The rulemaking shall be treated
as a ‘‘permit-but-disclose’’ proceeding in
accordance with the Commission’s ex
parte rules.977 Persons making oral ex
parte presentations are reminded that
memoranda summarizing the
presentations must contain summaries
of the substance of the presentations
and not merely a listing of the subjects
discussed. More than a one or two
sentence description of the views and
arguments presented generally is
required.978 Other requirements
pertaining to oral and written
presentations are set forth in Section
1.1206(b) of the Commission’s rules.979
2. Comment Filing Procedures
463. Pursuant to Sections 1.415 and
1.419 of the Commission’s rules,980
interested parties may file comments on
or before the dates indicated on the first
page of this document. All filings
related to this Third FNPRM should
refer to WT Docket No. 06–150 and PS
Docket No. 06–229. Comments may be
filed using: (1) The Commission’s
Electronic Comment Filing System
(ECFS), (2) the Federal Government’s
eRulemaking Portal, or (3) by filing
paper copies.981
• Electronic Filers: Comments may be
filed electronically using the Internet by
accessing the ECFS: https://www.fcc.gov/
cgb/ecfs/ or the Federal eRulemaking
976 Id.
977 47
CFR 1.200 et seq.
47 CFR 1.1206(b)(2).
979 47 CFR 1.1206(b).
980 47 CFR 1.415, 1.419.
981 See Electronic Filing of Documents in
Rulemaking Proceedings, 63 Fed. Reg. 24121 (May
1, 1998).
978 See
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Fmt 4701
Sfmt 4702
Portal: https://www.regulations.gov.
Filers should follow the instructions
provided on the website for submitting
comments.
• ECFS filers must transmit one
electronic copy of the comments for WT
Docket No. 06–150 and PS Docket No.
06–229. In completing the transmittal
screen, filers should include their full
name, U.S. Postal Service mailing
address, and WT Docket No. 06–150 and
WT Docket No. 06–229. Parties may also
submit an electronic comment by
Internet e-mail. To get filing
instructions, filers should send an email to ecfs@fcc.gov and include the
following words in the body of the
message, ‘‘get form.’’ A sample form and
directions will be sent in response.
• Paper Filers: Parties who choose to
file by paper must file an original and
four copies of each filing. If more than
one docket or rulemaking number
appears in the caption of this
proceeding, filers must submit two
additional copies for each additional
docket or rulemaking number. Filings
can be sent by hand or messenger
delivery, by commercial overnight
courier, or by first-class or overnight
U.S. Postal Service mail (although the
Commission continues to experience
delays in receiving U.S. Postal Service
mail). All filings must be addressed to
the Commission’s Secretary, Marlene H.
Dortch, Office of the Secretary, Federal
Communications Commission, 445 12th
Street, SW., Washington, DC 20554.
• The Commission’s contractor will
receive hand-delivered or messengerdelivered paper filings for the
Commission’s Secretary at 236
Massachusetts Avenue, NE., Suite 110,
Washington, DC 20002. The filing hours
at this location are 8 a.m. to 7 p.m. All
hand deliveries must be held together
with rubber bands or fasteners. Any
envelopes must be disposed of before
entering the building.
• Commercial overnight mail (other
than U.S. Postal Service Express Mail
and Priority Mail) must be sent to 9300
East Hampton Drive, Capitol Heights,
MD 20743.
• U.S. Postal Service first-class,
Express, and Priority mail should be
addressed to 445 12th Street, SW.,
Washington DC 20554.
464. Parties should send a copy of
their filings to: Nese Guendelsberger,
¸
Wireless Telecommunications Bureau,
445 12th Street, SW., Washington, DC
20554, or by e-mail to
nese.guendelsberger@fcc.gov; and Jeff
Cohen, Public Safety and Homeland
Security Bureau, 445 12th Street, SW.,
Washington, DC 20554, or by e-mail to
jeff.cohen@fcc.gov. Parties shall also
serve one copy with the Commission’s
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copy contractor, Best Copy and Printing,
Inc. (BCPI), Portals II, Room CY–B402,
445 12th Street, SW., Washington, DC
20554, (800) 378–3160, or via e-mail to
fcc@bcpiweb.com.
465. Comments filed in response to
this notice of proposed rulemaking will
be available for public inspection and
copying during business hours at the
FCC Reference Information Center,
Portals II, Room CY–A257, 445 12th
Street, SW., Washington, DC 20554 and
via the Commission’s Electronic
Comment Filing System (ECFS) by
entering the docket numbers WT Docket
No. 06–150 and PS Docket No. 06–229.
The documents may also be purchased
from BCPI, telephone (800) 378–3160,
facsimile (202) 488–5563, TTY (202)
488–5562, e-mail fcc@bcpiweb.com.
jlentini on PROD1PC65 with PROPOSALS2
3. Accessible Formats
466. To request materials in accessible
formats for people with disabilities
(Braille, large print, electronic files,
audio format), send an e-mail to
FCC504@fcc.gov or call the Consumer &
Governmental Affairs Bureau at 202–
418–0530 (voice), 202–418–0432 (TTY).
Contact the FCC to request reasonable
accommodations for filing comments
(accessible format documents, sign
language interpreters, CARTS, etc.) by email: FCC504@fcc.gov; phone: 202–418–
0530 (voice), 202–418–0432 (TTY).
V. Ordering Clauses
467. Accordingly, it is ordered
pursuant to sections 1, 2, 4(i), 5(c), 7, 10,
201, 202, 208, 214, 301, 302, 303, 307,
308, 309, 310, 311, 314, 316, 319, 324,
332, 333, 336, 337, 614, 615, and 710 of
the Communications Act of 1934, as
amended, 47 U.S.C. 151, 152, 154(i),
155(c), 157, 160, 201, 202, 208, 214, 301,
302, 303, 307, 308, 309, 310, 311, 314,
316, 319, 324, 332, 333, 336, and 337,
that this third further notice of proposed
rulemaking in WT Docket No. 06–150
and PS Docket No. 06–229 is adopted.
The third further notice of proposed
rulemaking shall become effective upon
publication in the Federal Register.
468. It is further ordered that pursuant
to applicable procedures set forth in
Sections 1.415 and 1.419 of the
Commission’s Rules, 47 CFR 1.415,
1.419, interested parties may file
comments on the third further notice of
proposed rulemaking on or before
November 3, 2008, and reply comments
on or before November 12, 2008.
469. It is further ordered that the
Commission shall send a copy of this
third further notice of proposed
rulemaking in a report to be sent to
Congress and the General Accounting
Office pursuant to the Congressional
Review Act, 5 U.S.C. 801(a)(1)(A).
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List of Subjects
47 CFR Part 27
Communications common carriers,
Radio, Wireless radio services.
47 CFR Part 90
Civil defense, Common carriers,
Emergency medical services, Radio,
Reporting and recordkeeping
requirements.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
For the reasons discussed in the
preamble, the Federal Communications
Commission proposes to amend 47 CFR
parts 27 and 90 as follows:
PART 27—MISCELLANEOUS
WIRELESS COMMUNICATIONS
SERVICES
1. The authority citation for part 27
continues to read as follows:
Authority: 47 U.S.C. 154, 301, 302, 303,
307, 309, 332, 336, and 337 unless otherwise
noted.
2. Section 27.4 is amended by revising
the following definitions to read as
follows:
§ 27.4
Terms and definitions.
*
*
*
*
*
Network Sharing Agreement (NSA).
An agreement entered into between the
winning bidder of an Upper 700 MHz D
Block license, the Upper 700 MHz D
Block licensee, the Network Assets
Holder, the Operating Company, the
Public Safety Broadband Licensee, and
any other related entities that the
Commission may require or allow
regarding the shared wireless broadband
network associated with that 700 MHz
Public/Private Partnership that will
operate on the 758–763 MHz and 788–
793 MHz bands and the 763–768 MHz
and 793–798 MHz bands.
*
*
*
*
*
Upper 700 MHz D Block license. The
Upper 700 MHz D Block license
authorizes services in the 758–763 MHz
and 788–793 MHz bands.
*
*
*
*
*
3. Section 27.6 is amended by revising
paragraphs (a) introductory text and
(b)(3) to read as follows:
§ 27.6
Service areas.
(a) WCS service areas include
Economic Areas (EAs), Major Economic
Areas (MEAs), Regional Economic Area
Groupings (REAGs), cellular markets
comprising Metropolitan Statistical
Areas (MSAs) and Rural Service Areas
(RSAs), Public Safety Regions (PSRs)
and a nationwide area. MEAs and
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REAGs are defined in the Table
immediately following paragraph (a)(1)
of this section. Both MEAs and REAGs
are based on the U.S. Department of
Commerce’s EAs. See 60 FR 13114
(March 10, 1995). In addition, the
Commission shall separately license
Guam and the Northern Mariana
Islands, Puerto Rico and the United
States Virgin Islands, American Samoa,
and the Gulf of Mexico, which have
been assigned Commission-created EA
numbers 173–176, respectively. PSRs
are comprised of the fifty-five 700 MHz
Regional Planning Committee regions,
See 66 FR 51669–02 (October 10, 2001)
(as modified by Public Notice DA 01–
2112, Public Safety 700 MHz Band—
General Use Channels: Approval of
Changes to Regional Planning
Boundaries of Connecticut and
Michigan (rel. Sept. 10, 2001), and three
additional regions. The three additional
PSR regions cover the same areas that
are covered by the EAs for: The Gulf of
Mexico; Guam and the Northern
Mariana Islands; and American Samoa.
PSRs are defined in the table
immediately following paragraph
(b)(3)(ii) of this section. The nationwide
area is comprised of the geographic
areas covered by the 58 PSRs and covers
the same area covered by contiguous 48
states, Alaska, Hawaii, the Gulf of
Mexico, and all of the U.S. territories
included in Commission-created EAs.
Maps of the EAs, MEAs, MSAs, RSAs,
and REAGs and the Federal Register
notice that established the 172 EAs are
available for public inspection and
copying at the Reference Information
Center, Consumer and Governmental
Affairs Bureau, Federal
Communications Commission, 445 12th
Street, SW., Washington, DC 20554.
Maps of the PSRs are also available for
public inspection and copying at the
Reference Information Center,
Consumer and Governmental Affairs
Bureau, Federal Communications
Commission, 445 12th Street, SW.,
Washington, DC 20554.
*
*
*
*
*
(b) * * *
(3) Service areas for Block D in the
758–763 MHz and 788–793 MHz bands
will be determined based on the results
of the auction for licenses with respect
to Block D. The Commission will offer
in such an auction licenses for the
following geographic service areas:
(i) A nationwide area as defined in
paragraph (a) of this section.
(ii) Public Safety Regions (PSRs) as
defined in paragraph (a) of this section.
The geographic boundaries of the PSRs
are defined in the table below:
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Geographical boundaries of public safety regions (PSRS)
PSR No.
States, counties and territories included in regions
1
2
3
4
5
6
7
8
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9 ....................
10 ..................
11 ..................
12 ..................
13 ..................
14 ..................
15 ..................
16 ..................
17 ..................
18 ..................
19 ..................
20 ..................
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29
30
31
32
33
34
35
36
37
38
39
40
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41
42
43
44
45
46
47
48
49
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22
23
24
25
26
27
28
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50 ..................
51 ..................
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Alabama.
Alaska.
Arizona.
Arkansas.
California–South (to the northernmost borders of San Luis Obispo, Kern, and San Bernardino Counties).
California–North (that part of California not included in California-South).
Colorado.
New York–Metropolitan—New York: Bronx, Kings, Nassau, New York, Orange, Putnam, Queens, Richmond, Rockland, Suffolk,
Sullivan, Ulster, Dutchess, and Westchester Counties; New Jersey: Bergen, Essex, Hudson, Morris, Passaic, Sussex, Union,
Warren, Middlesex, Somerset, Hunterdon, Mercer, and Monmouth Counties.
Florida.
Georgia.
Hawaii.
Idaho.
Illinois (all except area in Region 54).
Indiana (all except area in Region 54).
Iowa.
Kansas.
Kentucky.
Louisiana.
New England—Maine; New Hampshire; Vermont; Massachusetts; Rhode Island; Connecticut.
Maryland; Washington, DC; Virginia—Northern (Arlington, Fairfax, Fauquier, Loudoun, Prince William and Stafford Counties;
and Alexandria, Fairfax, Falls Church, Manassas and Manassas Park Cities).
Michigan.
Minnesota.
Mississippi.
Missouri.
Montana.
Nebraska.
Nevada.
New Jersey (except for counties included in the New York-Metropolitan, Region 8, above); Pennsylvania (Bucks, Chester, Montgomery, Philadelphia, Berks, Delaware, Lehigh, Northampton, Bradford, Carbon, Columbia, Dauphin, Lackawanna, Lancaster,
Lebanon, Luzerne, Lycoming, Monroe, Montour, Northumberland, Pike, Schuylkill, Sullivan, Susquehanna, Tioga, Wayne, Wyoming and York Counties); Delaware.
New Mexico.
New York—Albany (all except area in New York—Metropolitan, Region 8, and New York—Buffalo, Region 55).
North Carolina.
North Dakota.
Ohio.
Oklahoma.
Oregon.
Pennsylvania (all except area in Region 28, above).
South Carolina.
South Dakota.
Tennessee.
Texas—Dallas (including the counties of Cooke, Grayson, Fannin, Lamar, Red River, Bowie, Wise, Denton, Collin, Hunt, Delta,
Hopkins, Franklin, Titus, Morris, Cass, Tarrant, Dallas, Palo Pinto, Parker, Rockwall, Kaufman, Rains, VanZandt, Wood,
Smith, Camp, Upshur, Gregg, Marion, Harrison, Panola, Rusk, Cherokee, Anderson, Henderson, Navarro, Ellis, Johnson,
Hood, Somervell and Erath).
Utah.
Virginia (all except area in Region 20, above).
Washington.
West Virginia.
Wisconsin (all except area in Region 54).
Wyoming.
Puerto Rico.
U.S. Virgin Islands.
Texas—Austin (including the counties of Bosque, Hill, Hamilton, McLennan, Limestone, Freestone, Mills, Coryell, Falls, Robertson, Leon, San Saba, Lampasas, Bell, Milam, Brazos, Madison, Grimes, Llano, Burnet, Williamson, Burleson, Lee, Washington, Blanco, Hays, Travis, Caldwell, Bastrop, and Fayette).
Texas—El Paso (including the counties of Knox, Kent, Stonewall, Haskell, Throckmorton, Gaines, Dawson, Borden, Scurry,
Fisher, Jones, Shackelford, Stephens, Andrews, Martin, Howard, Mitchell, Nolan, Taylor, Callahan, Eastland, Loving, Winkler,
Ector, Midland, Glasscock, Sterling, Coke, Runnels, Coleman, Brown, Comanche, Culberson, Reeves, Ward, Crane, Upton,
Reagan, Irion, Tom Green, Concho, McCulloch, Jeff Davis, Hudspeth, El Paso, Pecos, Crockett, Schleicher, Menard, Mason,
Presidio, Brewster, Terrell, Sutton, and Kimble).
Texas—Houston (including the counties of Shelby, Nacogdoches, San Augustine, Sabine, Houston, Trinity, Angelina, Walker,
San Jacinto, Polk, Tyler, Jasper, Newton, Montgomery, Liberty, Hardin, Orange, Waller, Harris, Chambers, Jefferson, Galveston, Brazoria, Fort Bend, Austin, Colorado, Wharton, and Matagorda).
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57833
Geographical boundaries of public safety regions (PSRS)
PSR No.
States, counties and territories included in regions
52 ..................
53 ..................
54 ..................
55 ..................
56 ..................
57 ..................
58 ..................
Texas—Lubbock (including the counties of Dallam, Sherman, Hansford, Ochiltree, Lipscomb, Hartley, Moore, Hutchinson, Roberts, Hemphill, Oldham, Potter, Carson, Grey, Wheeler, Deaf Smith, Randall, Armstrong, Donley, Collingsworth, Parmer, Castro, Swisher, Briscoe, Hall, Childress, Bailey, Lamb, Hale, Floyd, Motley, Cottle, Hardeman, Foard, Wilbarger, Witchita, Clay,
Montague, Jack, Young, Archer, Baylor, King, Dickens, Crosby, Lubbock, Kockley, Cochran, Yoakum, Terry, Lynn, and
Garza).
Texas—San Antonio (including the counties of Val Verde, Edwards, Kerr, Gillespie, Real, Bandera, Kendall, Kinney, Uvalde,
Medina, Bexar, Comal, Guadalupe, Gonzales, Lavaca, Dewitt, Karnes, Wilson, Atascosa, Frio, Zavala, Maverick, Dimmit, LaSalle, McMullen, Live Oak, Bee, Goliad, Victoria, Jackson, Calhoun, Refugio, Aransas, San Patricio, Nueces, Jim Wells,
Duval, Webb, Kleberg, Kenedy, Brooks, Jim Hogg, Zapata, Starr, Hidalgo, Willacy, and Cameron).
Chicago—Metropolitan—Illinois: Winnebago, McHenry, Cook, Kane, Kendall, Grundy, Boone, Lake, DuPage, DeKalb, Will, and
Kankakee Counties; Indiana: Lake, LaPorte, Jasper, Starke, St. Joseph, Porter, Newton, Pulaski, Marshall, and Elkart Counties; Wisconsin: Kenosha, Milwaukee, Washington, Dodge, Walworth, Jefferson, Racine, Ozaukee, Waukesha, Dane, and
Rock Counties.
New York—Buffalo (including the counties of Niagara, Chemung, Schuyler, Seneca, Erie, Chautauqua, Cattaraugus, Allegany,
Wyoming, Genesee, Orleans, Monroe, Livingston, Steuben, Ontario, Wayne, and Yates).
Guam and the Northern Mariana Islands.
American Samoa.
Gulf of Mexico.
*
*
*
*
*
4. Section 27.13 is amended by
revising paragraphs (b) and (c) to read
as follows:
§ 27.13
License period.
*
*
*
*
(b) 698–757 MHz, 775–787 MHz and
805–806 MHz bands. Initial
authorizations for the 698–757 MHz and
776–787 MHz bands will extend for a
term not to exceed ten years from
February 17, 2009, except that initial
authorizations for a part 27 licensee that
provides broadcast services, whether
exclusively or in combination with
other services, will not exceed eight
years. Initial authorizations for the 775–
776 MHz and 805–806 MHz bands shall
not exceed January 1, 2015. Licensees
that initiate the provision of a broadcast
service, whether exclusively or in
combination with other services, may
not provide this service for more than
eight years or beyond the end of the
license term if no broadcast service had
been provided, whichever period is
shorter in length.
(c) The paired 758–763 and 788–793
MHz bands. Initial WCS authorizations
for the paired 758–763 MHz and 788–
793 MHz bands will have a term not to
exceed 15 years from the date of initial
issuance or renewal.
*
*
*
*
*
5. Section 27.14 is amended by
revising paragraphs (e), (m), (n), and (o),
redesignating paragraph (o) as paragraph
(q) and adding a new paragraph (p), to
read as follows:
jlentini on PROD1PC65 with PROPOSALS2
*
§ 27.14 Construction requirements;
Criteria for renewal.
*
*
*
*
*
(e) Comparative renewal proceedings
do not apply to WCS licensees holding
authorizations for the 698–757 MHz and
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776–787 MHz bands. These licensees
must file a renewal application in
accordance with the provisions set forth
in § 1.949 of this chapter, and must
make a showing of substantial service,
independent of its performance
requirements, as a condition for renewal
at the end of each license term.
*
*
*
*
*
(m) A WCS licensee holding an
authorization for the D Block in the
758–763 MHz and 788–793 MHz bands
(the Upper 700 MHz D Block licensee)
shall meet the following construction
requirements in each PSR, except for the
Gulf of Mexico PSR, comprising its
license area.
(1) The Upper 700 MHz D Block
licensee shall provide signal coverage
and offer terrestrial service to at least 40
percent of the population in each PSR
by the end of the fourth year, and 75
percent by the end of the tenth year of
its license term. At the end of 15 years,
the licensee must meet one of the
following final benchmarks depending
on the population density of the PSR:
(i) For PSRs with a population density
equal to or greater than 500 people per
square mile, the licensee will be
required to provide signal coverage and
offer terrestrial service to at least 98
percent of the population by the end of
the fifteenth year;
(ii) For PSRs with a population
density equal to or greater than 100
people per square mile and less than
500 people per square mile, the licensee
will be required to provide signal
coverage and offer terrestrial service to
at least 94 percent of the population by
the end of the fifteenth year; and
(iii) For PSRs with a population
density less than 100 people per square
mile, the licensee will be required to
provide signal coverage and offer
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terrestrial service to at least 90 percent
of the population by the end of the
fifteenth year.
(2) The Upper 700 MHz D Block
licensee may modify its populationbased construction benchmarks with the
agreement of the Public Safety
Broadband Licensee and the prior
approval of the Commission, where
such a modification would better serve
to meet commercial and public safety
needs. Such modifications must be
incorporated into the Network Sharing
Agreement.
(3) The Upper 700 MHz D Block
licensee shall meet the population
benchmarks based using the most recent
decennial U.S. Census Data available at
the time of measurement for each PSR
comprising its license area. The network
and signal levels employed to meet
these benchmarks must be consistent
with the requirements in § 27.1305.
(4) A build-out schedule must be
specified in the Network Sharing
Agreement consistent with the
requirements in this section. The buildout schedule shall include coverage for
major highways and interstates, as well
as such additional areas that are
necessary to provide coverage for all
incorporated communities with a
population in excess of 3,000, unless the
Public Safety Broadband Licensee and
the Upper 700 MHz D Block licensee
jointly determine, in consultation with
a relevant community, that such
additional coverage will not provide
significant public benefit. Any coverage
agreed under the Network Sharing
Agreement to extend to major highways,
interstates, and incorporated
communities with populations greater
than 3,000 beyond the network coverage
required by the population benchmarks
must be completed no later than the end
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of the D Block license term. To the
extent that coverage of major highways,
interstates and incorporated
communities with populations in excess
of 3,000 requires the D Block licensee to
extend coverage beyond what is
required to meet its population
benchmarks, the licensee shall be
permitted to meet that additional
coverage through non-terrestrial means,
such as Mobile Satellite Service or other
such technologies.
(n) The Upper 700 MHz D Block
licensee holding an authorization for the
Gulf of Mexico PSR shall negotiate with
the Public Safety Broadband Licensee,
as part of the Network Sharing
Agreement, a coverage and service plan
for public safety use in that region. Any
disputes shall be resolved by the
Commission pursuant to the dispute
resolution procedures.
(o) The Upper 700 MHz D Block
licensee shall demonstrate compliance
with performance requirements by filing
a construction notification with the
Commission within 15 days of the
expiration of the applicable benchmark,
in accordance with the provisions set
forth in § 1.946(d) of this chapter. The
licensee must certify whether it has met
the applicable performance requirement
and must file a description and
certification of the areas for which it is
providing service. The construction
notifications must include the
following:
(1) Certifications of the areas that
were scheduled for construction and
service by that date under the Network
Sharing Agreement for which it is
providing service, the type of
applications it is providing for each
area, and the type of technology it is
utilizing to provide these applications.
(2) Electronic coverage maps and
supporting technical documentation
providing the assumptions used by the
licensee to create the coverage maps,
including the propagation model and
the signal strength necessary to provide
service.
(p) At the end of its license term, the
Upper 700 MHz D Block licensee must,
in order to renew its license, make a
showing of its success in meeting the
material requirements set forth in the
Network Sharing Agreement as well as
all other license conditions, including
the performance benchmark
requirements set forth in this section.
*
*
*
*
*
6. Section 27.501 is revised to read as
follows:
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§ 27.501 746–763 MHz, 775–793 MHz, and
805–806 MHz bands subject to competitive
bidding.
(a) Mutually exclusive applications
for initial licenses in the 746–763 MHz,
775–793 MHz, and 805–806 MHz bands
are subject to competitive bidding. The
general competitive bidding procedures
set forth in part 1, subpart Q of this
chapter will apply unless otherwise
provided in this subpart.
(b) Competitive bidding rules for
licenses in Block D in the 758–763 MHz
and 788–793 MHz bands.
(1) Applications for licenses in the
758–763 MHz and 788–793 MHz bands
are mutually exclusive if the licenses
provide for use of different broadband
platform technologies;
(2) For an auction of licenses in the
758–763 MHz and 788–793 MHz bands
covering the entire nation, no licenses
will be assigned based on the results of
an auction unless at the close of bidding
in such auction there are provisionally
winning bids for licenses that cover at
least fifty percent (50%) of the nation’s
population, as determined consistent
with the Commission’s pre-auction
announcement of the population for
which each license will authorize
service;
(3) Notwithstanding any provision of
§ 1.2104(g)(2)(ii), whether or not
combinatorial bidding is available in the
auction, the percentage for the
additional payment portion of any
applicable default payment pursuant to
§ 1.2104(g)(2) will equal between 3 and
20 percent of the applicable bid,
according to a percentage (or
percentages) established by the
Commission in advance of the auction;
(4) Notwithstanding any provision of
§ 1.2108, the Commission may defer the
resolution of any petition to deny an
application for any licenses in the 758–
763 MHz and 788–793 MHz bands until
the applicant, the Public Safety
Broadband Licensee, and any other
party the Commission may require or
allow execute a Commission-approved
NSA and such other agreements as the
Commission may require or allow, and
(5) Notwithstanding any provisions of
§ 1.2109(b) or (c), whether or not
combinatorial bidding is available in the
auction, if the Commission for any
reason does not assign a license to the
applicant holding the winning bid for
that license at the close of the auction,
the Commission may, at its discretion,
offer the same license to another party
making the next highest bid for that
license.
7. Section 27.502 is amended by
revising the introductory text and
adding paragraph (c) to read as follows:
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§ 27.502
Designated entities.
Eligibility for small business
provisions:
*
*
*
*
*
(c) The spectrum capacity of any
Upper 700 MHz D Block license that is
subject to any arrangements for the lease
or resale (including under a wholesale
agreement) of spectrum capacity shall
not be considered when applying the
provisions of § 1.2110(b)(1)(iv)(A) of this
chapter.
7A. Section 27.1303 is amended by
revising paragraph (e) to read as follows:
§ 27.1303 Upper 700 MHz D Block license
conditions.
*
*
*
*
*
(e) The Upper 700 MHz D Block
licensee must provide the Public Safety
Broadband Licensee with priority access
during emergencies, as specified in
§ 27.1317(e).
*
*
*
*
*
7B. Section 27.1305 is revised to read
as follows:
§ 27.1305
network.
Shared wireless broadband
The Shared Wireless Broadband
Network developed by the 700 MHz
Public/Private Partnership must be
designed to meet requirements
associated with an interoperable,
nationwide public safety broadband
network as specified in this section. All
specified mandatory requirements as
defined in this section must be
incorporated in the Network Sharing
Agreement, and shall be used in the
determination of compliance under
§ 27.14(p). The Public Safety Broadband
Licensee and the Upper 700 MHz D
Block licensee may add any capabilities
or features beyond those in these rules
based on mutually agreeable terms
under the Network Sharing Agreement.
The Shared Wireless Broadband
Network shall incorporate the following:
(a) A design for public safety
operations over a broadband IP-based
technology platform that utilizes
standardized commercial technology;
provides fixed and mobile voice, video,
and data capability that is interoperable
across public safety local and state
agencies, jurisdictions, and geographic
areas; and includes current and evolving
state-of-the-art technologies reasonably
made available in the commercial
marketplace with features beneficial to
the public safety community.
(1) Such a design shall provide a
nationwide common radio access
network air interface to enable the
Shared Wireless Broadband Network to
support nationwide level
interoperability. The common air
interface shall allow migration to future
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technology upgrades. In the case of
regional Upper 700 MHz D Block
licensees, the common radio access
network air interface will be determined
via the auction process and each
regional Upper 700 MHz D Block
licensee will be required to enter into
arrangements both with other regional
Upper 700 MHz D Block licensees and
with the Public Safety Broadband
Licensee as necessary to ensure
interoperability between their networks.
Such arrangements must provide, at a
minimum, that each regional Upper 700
MHz D Block licensee will provide the
ability to roam on its network to public
safety users of all other Shared Wireless
Broadband Networks. Regional Upper
700 MHz D Block licensees are not
permitted to assess special roaming
charges (over and above service fees
charged for in-region use) in cases
where public safety users require
roaming for mutual aid or emergencies.
(2) The technology selected for the
Shared Wireless Broadband Network
shall be permitted to evolve based on
commercial wireless upgrade
timeframes, except that future upgrades
shall include user equipment backward
compatibility, as supported by
commercial product availability and
specified in the technology standards, to
allow for commercially reasonable
transition periods for public safety
entities’ user equipment. The
notification and impact management
processes relating to technology
upgrades, and migration to such
upgrades, shall be defined and agreed to
in the Network Sharing Agreement.
(3) To promote interoperability
between the Shared Wireless Broadband
Network and voice-based public safety
networks in other frequency bands, the
Upper 700 MHz D Block licensee will
publish IP-based specifications
describing how such other public safety
networks may access the Upper 700
MHz D Block licensee’s Shared Wireless
Broadband Network via bridges and/or
gateways. The Upper 700 MHz D Block
licensee shall charge these other public
safety networks for such access no more
than the relevant fee established or
approved by the Commission. Public
safety users shall bear the costs of the
bridges and gateways, including
installation and maintenance costs.
(4) The Shared Wireless Broadband
Network shall support a Voice over
Internet Protocol (VoIP) capability to
complement existing public safety
mission critical voice communication
systems. The VoIP capability shall allow
interconnection with the Public
Switched Telephone Network as well as
with other public safety VoIP users on
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the network. VoIP features will include
but not be limited to Push-To-Talk.
(b) Availability, robustness, and
hardening requirements as follows:
(1) The Shared Wireless Broadband
Network shall provide 99.6 percent
network availability for all terrestrial
elements of operation in the coverage
areas certified pursuant to § 27.14(o)(1),
calculated over each license area
annually, starting four years after
license issuance. The Upper 700 MHz D
Block licensee shall use commercially
reasonable efforts to provide network
availability above this requirement, with
the target of 99.9 percent network
availability.
(2) The method for measuring
availability shall be defined in the
Network Sharing Agreement, which
shall:
(i) Be a measure of infrastructure
availability as measured from the cell
site radio antenna through and across
the core network;
(ii) Exclude radio signal coverage and
scheduled maintenance downtime with
prior notice to the Public Safety
Broadband Licensee;
(iii) Exclude outages caused by
actions or events outside the reasonable
control of the Upper 700 MHz D Block
licensee; and
(iv) Exclude outages only affecting
limited applications.
(3) The Shared Wireless Broadband
Network design specifications shall
include commercial best practices, such
as Network Reliability and
Interoperability Council best practices,
that take into consideration local
influencing factors such as weather,
geology, and building codes on network
attributes such as hardening of
transmission facilities and antenna
towers, extended backup power, seismic
safety standards, and accommodations
for wind, ice, and other natural
phenomenon.
(4) The Upper 700 MHz D Block
licensee and the Public Safety
Broadband Licensee, in consultation
with the relevant community, shall
jointly designate ‘‘critical’’ sites. The
designation of sites as ‘‘critical’’ shall
not be required to cover more than 35
percent of the Shared Wireless
Broadband Network sites for the Upper
700 MHz D Block license; however, the
Upper 700 MHz D Block licensee shall
use commercially reasonable efforts to
designate as ‘‘critical’’ additional sites
requested by the Public Safety
Broadband Licensee, up to 50 percent of
all the licensee’s sites. Sites designated
as ‘‘critical’’ shall have battery backup
power of 8 hours, and shall have
generators with a fuel supply sufficient
to operate the generators for at least 48
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57835
hours. The Upper 700 MHz D Block
licensee shall make commercially
reasonable efforts to provide a fuel
supply at ‘‘critical’’ sites above this
requirement sufficient for a minimum of
5 days. The Upper 700 MHz D Block
licensee and the Public Safety
Broadband Licensee, in consultation
with the relevant community, shall
jointly determine the sites that will
require redundant backhaul in order to
comply with the network availability
requirements in this section.
(5) The Upper 700 MHz D Block
Licensee and the Public Safety
Broadband Licensee may agree on other
methods to improve network resiliency
in lieu of designating ‘‘critical’’ cell sites
as described in paragraph (b)(4) of this
section. These may include deployment
of mobile assets or the use of satellite
facilities.
(c) A capability incorporated into the
Shared Wireless Broadband Network
infrastructure to provide monthly usage
reports covering network capacity and
priority access so that the Public Safety
Broadband Licensee can monitor usage
and provide appropriate feedback to the
Upper 700 MHz D Block licensee on
operational elements of the network.
(d) Security and encryption consistent
with commercial best practices. For
purposes of complying with this
paragraph, the Upper 700 MHz D Block
licensee shall:
(1) Comply with U.S. government
standards, guidelines, and models that
are commercial best practices for
wireless broadband networks.
(2) Implement controls to ensure that
public safety priority and secure
network access are limited to authorized
public safety users and devices, and
utilize an open standard protocol for
authentication.
(3) Allow for public safety network
authentication, authorization, automatic
logoff, transmission secrecy and
integrity, audit control capabilities, and
other unique attributes.
(e) A mechanism to ensure Quality of
Service (QoS) for public safety and to
establish various levels of priority for
public safety communications. The
Upper 700 MHz D Block licensee shall
not be obligated to implement this
provision before appropriate standards
are developed and appropriate hardware
and software are available on
commercially reasonable terms. The
Upper 700 MHz D Block Licensee and
the Public Safety Broadband Licensee
shall use reasonable efforts to work with
applicable standards organizations,
network equipment manufacturers, and
other suppliers to accelerate the
commercially reasonable availability of
these features for the Shared Wireless
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Broadband Network. The Public Safety
Broadband Licensee shall have
authority to establish access priority and
service levels, and authenticate and
authorize public safety users. In
addition, the following provisions for
QoS shall be incorporated into the
operational capabilities of the Shared
Wireless Broadband Network.
(1) Priority shall be defined as Public
Safety Broadband Licensee-approved
user or class of users, network,
application, and services priorities that,
via user or class of users or device
identification, or both, offer the highest
assignable levels of priority for network
access and use of network resources,
services, and applications.
(2) The Shared Wireless Broadband
Network shall provide emergency
priority access pursuant to § 27.1307(e).
(3) The Shared Wireless Broadband
Network shall provide an appropriate
priority to 9–1–1 calls.
(4) QoS resource reservation and
session control mechanisms shall be
incorporated into the operational
capabilities of the Shared Wireless
Broadband Network.
(5) QoS shall be considered to be the
full class of mechanisms that are found
at multiple IP layers in the network
(both radio access network and core),
and that provision and apply priority for
IP packet based traffic.
(6) The assignment of network
resources shall enable user or service
priority, or both, in addition to the QoS
requirements of the application.
(7) The Shared Wireless Broadband
Network shall support multiple IP data
services and application session flows
between a user device and network,
where each flow may have a different
QoS requirement and priority level.
(8) If network resources are not
available to meet a resource reservation
request, the Shared Wireless Broadband
Network shall have the ability to
provide a new QoS consistent with the
limited network resources.
(f) Operational capabilities to support
public safety systems as specified
below:
(1) The Shared Wireless Broadband
Network shall provide access for all
applications and services, hosted
applications and services, and third
party public safety applications and
services specified in the Network
Sharing Agreement. The Public Safety
Broadband Licensee shall give
consideration of particular applications
to the overall impact on overall system
performance.
(2) The Shared Wireless Broadband
Network shall provide for the
application data rates shown in Table 1.
(3) The Shared Wireless Broadband
Network shall be designed to provide
edge of cell data rates shown in Table
2. Typical data rates should be designed
for at least 1 Mbs downlink and 600
kbps uplink. The data link speeds for
public safety users must be at least as
fast as the best data speeds provided to
commercial users of the Shared Wireless
Broadband Network.
(4) The Shared Wireless Broadband
Network must provide indoor coverage
for VoIP consistent with the propagation
parameters shown in Table 3.
(5) For purposes of these Tables 2 and
3, the following definitions apply in
terms of population per square mile:
Dense urban: 15,000 people or greater;
urban 2,500–14,999; suburban 200–
2499; and rural 0–199.
(6) The data rates in this section are
design objectives and are not to be
applied for a particular device, time or
location.
(7) Signal coverage, propagation, and
capacity parameters in Table 2 and 3
shall be reviewed by the Upper 700
MHz D Block licensee and the Public
Safety Broadband Licensee no less than
every four years to assess the impact of
benefits from technology evolution and
general improvement in network
coverage consistent with paragraph
(a)(2) of this section.
TABLE 1 TO § 27.1305—APPLICATIONS AND SERVICES QOS ATTRIBUTES
Application/service
Description
File transfer .....................................
E-mail ..............................................
Web browsing .................................
Mobile voice ....................................
Push to talk (PTT) voice .................
FTP and general data upload/download ...............................................
Both Web based and Entity Hosted E-Mail Service .............................
Intranet, extranet, and internet ..............................................................
Equivalent to current commercial mobile voice .....................................
Commercial grade PTT/PoC offerings with group call, alerting, and
monitoring capability.
Video that is transmitted from inside a building ....................................
Video that is transmitted from the street ...............................................
All location based services ....................................................................
Remote databases access both under the entities’ direct control as
well as databases that are local.
Instant messaging, SMS, and Push to X services ................................
Network operational and maintenance data including over the air programming and remote client management.
Data as it relates to computer aided dispatching ..................................
General category for traffic that does not fall within any of the categories described above, and that generates less than 64kb of
data per second.
Remote measurement and reporting of information for radio devices,
vehicles, and sensor data.
Secure remote access to entity LAN and WAN environments .............
Indoor video ....................................
Outdoor video ..................................
Location services ............................
Database transactions ....................
Messaging .......................................
Network Operations data ................
Dispatch data ..................................
Generic traffic ..................................
Telemetry ........................................
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Virtual Private Networking ...............
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Data rate
E:\FR\FM\03OCP2.SGM
Greater than 256kb/s.
Less than 16kb/s.
Greater than 32kb/s.
Minimum 15 kb/s.
4–25 kb/s.
20–384 kb/sF.
32–384 kb/s.
Less than 16kb/s.
Less than 32kb/s.
Less than 16kb/s.
Less than 32kb/s.
Less than 64kb/s.
Less than 64kb/s.
70–120 kb/s.
64–256 kb/s.
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TABLE 2 TO § 27.1305—DATA PROPAGATION AND CAPACITY PARAMETERS
Cell
coverage
area
reliability
(%)
Morphology
Dense Urban ....................................................................................................................
Urban ...............................................................................................................................
Suburban .........................................................................................................................
Rural ................................................................................................................................
Highway ...........................................................................................................................
Forward link
throughput
on-street
single user
average
cell-edge
(kbps)
Sector
loading
factor
(%)
95
95
95
95
95
Reverse link
throughput
on-street
single user
average
cell-edge
(kbps)
256
256
128
128
64
256
256
128
128
64
70
70
70
70
70
TABLE 3 TO § 27.1305—VOICE PROPAGATION AND CAPACITY PARAMETERS
In-building
penetration
margin
(dB)
Morphology
Dense Urban ..............................................................................................................
Urban .........................................................................................................................
Suburban ...................................................................................................................
Rural ..........................................................................................................................
Highway .....................................................................................................................
7C. Section 27.1307 is amended by
revising paragraph (d) and adding
paragraph (e) to read as follows:
§ 27.1307
Spectrum use in the network.
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(d) The Upper 700 MHz D Block
licensee may construct and operate the
Shared Wireless Broadband Network
using both the 758–763 MHz and 788–
793 MHz bands as well as the 763–768
MHz and 793–798 MHz bands as a
combined resource. If the Upper 700
MHz D Block licensee chooses to
operate the spectrum as a combined
resource, however, 50 percent of the
capacity available from the combined 20
megahertz of spectrum must be assigned
to public safety users and the other 50
percent must be assigned to the
commercial users, consistent with the
respective capacity and priority rights of
the Upper 700 MHz D Block license and
the Public Safety Broadband License
and with rules in this part.
(e) Emergency Priority Access. (1) The
Upper 700 MHz D Block licensee must
provide public safety users priority
access to, but not preemptive use of, up
to 40 percent of the commercial
spectrum capacity (two megahertz in
each of the uplink and downlink
blocks), assuming the full public safety
broadband block spectrum capacity is
being used, for an aggregate total of 14
megahertz of overall network capacity
in the following circumstances:
(i) The President or a state governor
declares a state of emergency.
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19
13
6
6
(ii) The President or a state governor
issues an evacuation order impacting
areas of significant scope.
(iii) The national or airline sector
threat level is set to red.
(2) The D Block licensee must provide
priority access to, but not preemptive
use of, up to 20 percent of the
commercial spectrum capacity (one
megahertz in each of the uplink and
downlink blocks) in the following
circumstances:
(i) The National Weather Service
issues a hurricane or flood warning
likely to impact a significant area.
(ii) The occurrence of other major
natural disasters, such as tornado
strikes, tsunamis, earthquakes, or
pandemics.
(iii) The occurrence of manmade
disasters or acts of terrorism of a
substantial nature.
(iv) The occurrence of power outages
of significant duration and scope.
(v) The national threat level is set to
orange.
(3) The Upper 700 MHz D Block
licensee must assign the next available
channel to the requesting public safety
user over a commercial user—i.e., the
public safety user would be placed at
the top of the queue—and should not
preempt a commercial call in progress.
Emergency priority access is limited to
the time and geographic scope of the
emergency.
(4) To trigger emergency priority
access, the Public Safety Broadband
Licensee must request, on behalf of the
impacted public safety agencies, that the
Upper 700 MHz D Block licensee
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Cell coverage
area reliability
(%)
Sector loading
factor
(%)
95
95
95
95
95
70
70
70
70
70
provide such access. Emergency priority
access requests initiated by the Public
Safety Broadband Licensee will cover a
24-hour time period, and must be
reinitiated by the Public Safety
Broadband Licensee for each 24-hour
time period thereafter that the priority
access is required.
(5) In the event that the Upper 700
MHz D Block licensee and the Public
Safety Broadband Licensee do not agree
that an emergency has taken place, the
Public Safety Broadband Licensee may
request the Defense Commissioner to
resolve the dispute.
8. Section 27.1310 is amended by
revising paragraphs (c), (d), (f), (g), and
(j), and adding paragraphs (k) through
(n), to read as follows:
§ 27.1310
Network sharing agreement.
*
*
*
*
*
(c) The definition of ‘‘emergency’’ for
purposes of emergency priority access,
as described in § 27.1307(e).
(d) All service fees to be imposed for
services to public safety, including fees
for normal network service,
interconnected service, and fees for
priority access to the D Block spectrum
in an emergency.
*
*
*
*
*
(f) The right of the Public Safety
Broadband Licensee to determine and
approve the specifications of public
safety equipment used on the network
and the right to purchase its own
subscriber equipment from any vendor
it chooses, to the extent such
specifications and equipment are
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consistent with reasonable network
management requirements.
(g) The terms, conditions, and
timeframes pursuant to which the
Upper 700 MHz D Block licensee must
make available at least one handset
suitable for public safety use that
includes an integrated satellite solution.
*
*
*
*
*
(j) To the extent that interoperability
arrangements between the Upper 700
MHz D Block licensee and the Public
Safety Broadband Licensee are required
under § 27.1305(a)(1), the terms and
conditions of the arrangement,
including the terms and conditions
under which roaming will be provided
to public safety users of other Shared
Wireless Broadband Networks.
(k) The terms of a standard agreement
under which public safety networks
operating in other frequency bands may
connect to the Shared Wireless
Broadband Network pursuant to and in
accordance with § 27.1305(a)(1).
(l) Terms regarding the establishment
of access priorities, service levels and
related requirements, and approval of
public safety applications and end user
devices, by the Public Safety Broadband
Licensee.
(m) A process for forecasting demand
for public safety usage.
(n) A contract term, not to exceed a
15 year period that coincides with the
terms of the Upper 700 MHz D Block
license and the Public Safety Broadband
License.
8A. Section 27.1315 is amended by
revising paragraphs (a), (b), (c), (f)(4),
and (g) to read as follows:
§ 27.1315 Establishment, execution, and
application of the network sharing
agreement.
jlentini on PROD1PC65 with PROPOSALS2
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*
(a) Approval of NSA as pre-condition
for granting the Upper 700 MHz D Block
License. The Commission shall not grant
an Upper 700 MHz D Block license until
the winning bidder for the subject
Upper 700 MHz D Block license has
negotiated an NSA and such other
agreements as the Commission may
require or allow with the Public Safety
Broadband Licensee, and the NSA and
related agreements, or documents have
been approved by the Commission and
executed by the required parties. Parties
to the NSA must also include the Upper
700 MHz D Block licensee, a Network
Assets Holder, and an Operating
Company, as these entities are defined
in § 27.4.
(b) Requirement of negotiation.
Negotiation of an NSA between a
winning bidder for an Upper 700 MHz
D Block license and the Public Safety
Broadband Licensee must commence by
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the date the winning bidder files its long
form application or the date on which
the Commission designates the Public
Safety Broadband Licensee, whichever
is later, and must conclude within six
months of that date. Parties to this
negotiation are required to negotiate in
good faith. Two members of the
Commission staff, one from the Wireless
Telecommunications Bureau and one
from the Public Safety and Homeland
Security Bureau, shall be present at all
stages of the negotiation as neutral
observers.
(c) Reporting requirements. A winning
bidder for the Upper 700 MHz D Block
license must file a report with the
Commission within 10 business days of
the commencement of the negotiation
period certifying that active and good
faith negotiations have begun, providing
the date on which they commenced, and
providing a schedule of the initial dates
on which the parties intend to meet for
active negotiations, covering at a
minimum the first 30-day period.
Beginning three months from the
triggering of the six-month negotiation
period, the winning bidder for a Upper
700 MHz D Block license and the Public
Safety Broadband Licensee must jointly
provide detailed reports, on a monthly
basis and subject to a request for
confidential treatment, on the progress
of the negotiations throughout the
remainder of the negotiations. These
reports must include descriptions of all
material issues that the parties have yet
to resolve.
*
*
*
*
*
(f) * * *
(4) Determining that no resolution of
the disputed issues can be made
consistent with the public interest.
(g) Lack of a Commission-approved
NSA and such other agreements as the
Commission may require or allow. If a
winning bidder chooses not to execute
a Commission-approved NSA or such
other agreements as the Commission
may require or allow within 10 business
days of Commission approval, the
winning bidder’s long-form application
will be dismissed, the winning bidder
will be deemed to have defaulted under
§ 1.2109(c) of this chapter, and the
winning bidder will be liable for the
default payment specified in
§ 1.2104(g)(2) of this chapter and
§ 27.501(b)(3). In all other circumstances
in which the parties do not submit
executed copies of a Commissionapproved NSA and such other
agreements within the time permitted
by this section, and the Commission
does not dismiss the winning bidder’s
long-form application for reasons other
than the lack of a Commission-approved
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NSA, the winning bidder’s long-form
application will be dismissed and any
payments made toward the winning bid
will be returned to the payor(s) of
record.
8B. Section 27.1330 is amended by
revising paragraph (b) introductory text
and (b)(4) to read as follows:
§ 27.1330 Local public safety build-out and
operation.
*
*
*
*
*
(b) Rights to early build-out in areas
with a build-out commitment. In an area
where the Upper 700 MHz D Block
licensee has committed, in the NSA, to
build out by a certain date, a public
safety entity may, with the pre-approval
of the Public Safety Broadband Licensee
and the Upper 700 MHz D Block
licensee, and subject to the
requirements set forth herein, construct
a broadband network in that area at its
own expense so long as the network is
capable of operating on the Shared
Wireless Broadband Network and meets
all the requirements and specifications
of the network required under the NSA.
*
*
*
*
*
(4) Attribution of early build-out to
applicable construction benchmarks.
Upon completion of construction,
transfer of ownership to the Upper 700
MHz D Block licensee, and
compensation as required herein, if
applicable, the Upper 700 MHz D Block
licensee may include the network
constructed pursuant to the early buildout provisions herein for purposes of
determining whether it has met its
build-out benchmarks and the build-out
requirements of the NSA.
*
*
*
*
*
9. Section 27.1340 is amended by
adding paragraph (c) to read as follows:
§ 27.1340
Reporting obligations.
*
*
*
*
*
(c) The Upper 700 MHz D Block
licensee must provide regular monthly
reports on network usage to the Public
Safety Broadband Licensee.
PART 90—PRIVATE LAND MOBILE
RADIO SERVICES
10. The authority citation for part 90
continues to read as follows:
Authority: Sections 4(i), 11, 303(g), 303(r),
and 332(c)(7) of the Communications Act of
1934, as amended, 47 U.S.C. 154(i), 161,
303(g), 303(r), and 332(c)(7) unless otherwise
noted.
11. Section 90.7 is amended by
revising the following definitions to
read as follows:
§ 90.7
*
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Network Sharing Agreement (NSA).
An agreement entered into between the
winning bidder of an Upper 700 MHz D
Block license, the Upper 700 MHz D
Block licensee, the Network Assets
Holder, the Operating Company, the
Public Safety Broadband Licensee, and
any other related entities that the
Commission may require or allow
regarding the shared wireless broadband
network associated with that 700 MHz
Public/Private Partnership that will
operate on the 758–763 MHz and 788–
793 MHz bands and the 763–768 MHz
and 793–798 MHz bands.
*
*
*
*
*
Upper 700 MHz D Block license. The
Upper 700 MHz D Block license
authorizes services in the 758–763 MHz
and 788–793 MHz bands.
*
*
*
*
*
12. Section 90.18 is revised to read as
follows:
§ 90.18 Public Safety 700 MHz Nationwide
Broadband Network.
The 763–768/793–798 MHz band is
dedicated to a broadband public safety
communications system with a
nationwide level of interoperability. A
nationwide license for this spectrum is
held by a single entity, the Public Safety
Broadband Licensee, which must enter
into the 700 MHz Public/Private
Partnership with the Upper 700 MHz D
Block licensee, pursuant to a Network
Sharing Agreement and such other
agreements as the Commission may
require. The specific provisions relating
to the 700 MHz Public/Private
Partnership are set forth in subpart AA
of this part and subpart N of part 27.
The Public Safety 700 MHz Nationwide
Broadband Network is established in PS
Docket No. 06–229.
13. Section 90.523 is revised to read
as follows:
jlentini on PROD1PC65 with PROPOSALS2
§ 90.523
Eligibility.
This section implements the
definition of public safety services
contained in 47 U.S.C. 337(f)(1).
(a) Public Safety Narrowband
Spectrum Eligibility Criteria. The
eligibility criteria to hold Commission
authorizations to deploy and operate
systems in the 769–775 MHz and 799–
805 MHz (public safety narrowband)
frequency bands are as follows:
(1) Public Safety Services.
Authorizations to deploy and operate
systems in the 769–775 MHz and 799–
805 MHz frequency bands are limited to
services the sole or principal use of
which is to protect the safety of life,
health, or property, and which are not
made commercially available to the
public by the license holder. Public
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Safety Services may be provided either
by:
(i) State or Local Government Entities,
including any territory, possession,
state, city, county, town, or similar State
or local governmental entity, or
(ii) Nongovernmental Organizations
(NGO) that are authorized by a state or
local government entity whose primary
mission is the provision of Public Safety
Services, provided that the NGO:
(A) Has the ongoing authorization of
a state or local governmental entity
whose mission is the provision of Public
Safety Services;
(B) Operates such authorized system
consistent with the limitations in
paragraph (a)(1) of this section; and
(C) Submits with its applications a
written certification of support by the
state or local governmental entity
referenced in paragraph (a)(1)(ii)(A) of
this section.
(2) NGOs assume all risks associated
with operating under the conditions
specified in paragraph (a)(1)(ii) of this
section. Authorizations issued to NGOs
to operate systems in the 769–775 MHz
and 799–805 MHz frequency bands
include the following condition: If at
any time the authorizing governmental
entity notifies the Commission in
writing of such governmental entity’s
termination of its authorization of a
NGO’s operation of a system in the 769–
775 MHz and 799–805 MHz frequency
bands, the NGO’s authorization shall
terminate automatically.
(b) Public Safety Broadband Spectrum
Use Eligibility Criteria. Only entities
that meet the public safety narrowband
spectrum eligibility criteria in paragraph
(a) of this section, shall be eligible to
access the Shared Wireless Broadband
Network, operating in the 763–768 MHz
and 793–798 MHz (public safety
broadband) frequency bands, under the
authorization of the Public Safety
Broadband Licensee, in accordance with
the terms of the Network Sharing
Agreement governing the use of this
network.
(c) Public Safety Broadband License
Eligibility Criteria. The minimum
eligibility requirements to hold the
Public Safety Broadband License
covering the 763–768 MHz and 793–798
MHz public safety broadband frequency
bands are as follows:
(1) No commercial interest may be
held in the Public Safety Broadband
Licensee, and no commercial interest
may participate in the management of
the Public Safety Broadband Licensee.
(2) The Public Safety Broadband
Licensee must be a non-profit
organization.
(3) The Public Safety Broadband
Licensee must be as broadly
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representative of the public safety radio
user community as possible.
(4) The Public Safety Broadband
Licensee must be in receipt of written
certifications from no less than ten
geographically diverse state and local
governmental entities (the authorizing
entities), with at least one certification
from a state government entity and one
from a local government entity,
verifying that:
(i) They have authorized the Public
Safety Broadband Licensee to use
spectrum at 763–768 MHz and 793–798
MHz to provide the authorizing entities
with public safety services; and
(ii) The authorizing entities’ primary
mission is the provision of public safety
services.
(5) The sole or principal purpose of
the services provided under the Public
Safety Broadband Licensee’s
authorization must be to protect the
safety of life, health, or property. These
services must comply with the terms of
the Network Sharing Agreement(s) and
must not be made commercially
available to the public.
14. Section 90.528 is amended by
revising paragraph (d) and adding new
paragraphs (h) and (i) to read as follows:
§ 90.528
Public safety broadband license.
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(d) The term of the Public Safety
Broadband License shall not exceed
fifteen years from the date upon which
the first D Block license is granted. The
Public Safety Broadband Licensee is
entitled to a renewal expectancy barring
violations of law, rules or policy
warranting denial of renewal.
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(h) Annual Budgeting Process. The
Public Safety Broadband Licensee shall
establish an audited annual budgeting
process, conducted by an external,
independent auditor. Such audited
budget shall be submitted to the
Commission and presented at an open
meeting of the Board of Directors. The
Chief, Public Safety and Homeland
Security Bureau, may request an audit
of the Public Safety Broadband
Licensee’s expenses at any time.
(i) Proposed Annual Budget. As part
of its annual budgeting process, the
Public Safety Broadband Licensee shall
submit for approval to the Chief, Public
Safety and Homeland Security Bureau,
and Chief, Wireless
Telecommunications Bureau its
proposed budget for each such
upcoming fiscal year.
15. Section 90.1403 is amended by
revising paragraphs (a) and
(b)(1),(2),(3),(5),(8) and (9) and by
adding paragraph (b)(10) to read as
follows:
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§ 90.1403 Public safety broadband license
conditions.
(a) The Public Safety Broadband
Licensee shall comply with all of the
applicable requirements set forth in this
subpart and shall comply with the terms
of the Network Sharing Agreement(s)
and such other agreements as the
Commission may require or allow.
(b) * * *
(1) Negotiation of the NSA and such
other agreements as the Commission
may require or allow with the winning
bidder at auction for a Upper 700 MHz
Band D Block license, pursuant to the
requirements set forth in § 90.1410.
(2) General administration of access to
the 763–768 MHz and 793–798 MHz
bands by individual public safety
entities, as facilitated through the
establishment of priority access, service
levels and related requirements within
the NSA process, approving public
safety applications and end user
devices, and related frequency
coordination duties.
(3) Regular interaction with and
promotion of the needs of the public
safety entities with respect to access and
use of the 763–768 MHz and 793–798
MHz bands, within the technical and
operational confines of the governing
NSA.
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(5) Sole authority, which cannot be
waived in the NSA(s), to approve, in
consultation with the Upper 700 MHz D
Block licensee, equipment and
applications for use by public safety
entities on the public safety broadband
network. State or local entities may seek
review of a decision by the Public Safety
Broadband Licensee not to permit
certain equipment or applications, or
particular specifications for equipment
or applications, from the Chief, Public
Safety and Homeland Security Bureau.
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(8) Exercise of sole discretion,
pursuant to § 2.103 of this chapter,
whether to permit Federal public safety
agency use of the public safety
broadband spectrum, with any such use
subject to the terms and conditions of
the governing NSA.
(9) Review of requests for early
construction and operation of local
public safety broadband networks on
the 700 MHz public safety broadband
spectrum in areas with and without a
preexisting build-out commitment in
the applicable NSA, pursuant to the
procedures and requirements outlined
for such waivers as described in
§ 90.1430.
(10) Review of requests for waiver
submitted by public safety entities to
conduct wideband operations pursuant
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to the procedures and restrictions in
connection with such waivers as
described in § 90.1432.
16. Section 90.1405 is revised to read
as follows:
§ 90.1405
network.
Shared wireless broadband
The Shared Wireless Broadband
Network developed by the 700 MHz
Public/Private Partnership must be
designed to meet requirements
associated with an interoperable,
nationwide public safety broadband
network as specified in this section. All
specified mandatory requirements as
defined in this section must be
incorporated in the Network Sharing
Agreement, and shall be used in the
determination of compliance under
§ 27.14(p) of this chapter. The Public
Safety Broadband Licensee and the
Upper 700 MHz D Block licensee may
add any capabilities or features beyond
those in these rules based on mutually
agreeable terms under the Network
Sharing Agreement. The Shared
Wireless Broadband Network shall
incorporate the following:
(a) A design for public safety
operations over a broadband IP-based
technology platform that utilizes
standardized commercial technology;
provides fixed and mobile voice, video,
and data capability that is interoperable
across public safety local and state
agencies, jurisdictions, and geographic
areas; and includes current and evolving
state-of-the-art technologies reasonably
made available in the commercial
marketplace with features beneficial to
the public safety community.
(1) Such a design shall provide a
nationwide common radio access
network air interface to enable the
Shared Wireless Broadband Network to
support nationwide level
interoperability. The common air
interface shall allow migration to future
technology upgrades. In the case of
regional Upper 700 MHz D Block
licensees, the common radio access
network air interface will be determined
via the auction process and each
regional Upper 700 MHz D Block
licensee will be required to enter into
arrangements both with other regional
Upper 700 MHz D Block licensees and
with the Public Safety Broadband
Licensee as necessary to ensure
interoperability between their networks.
Such arrangements must provide, at a
minimum, that each regional Upper 700
MHz D Block licensee will provide the
ability to roam on its network to public
safety users of all other Shared Wireless
Broadband Networks. Regional Upper
700 MHz D Block licensees are not
permitted to assess special roaming
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charges (over and above service fees
charged for in-region use) in cases
where public safety users require
roaming for mutual aid or emergencies.
(2) The technology selected for the
Shared Wireless Broadband Network
shall be permitted to evolve based on
commercial wireless upgrade
timeframes, except that future upgrades
shall include user equipment backward
compatibility, as supported by
commercial product availability and
specified in the technology standards, to
allow for commercially reasonable
transition periods for public safety
entities’ user equipment. The
notification and impact management
processes relating to technology
upgrades, and migration to such
upgrades, shall be defined and agreed to
in the Network Sharing Agreement.
(3) To promote interoperability
between the Shared Wireless Broadband
Network and voice-based public safety
networks in other frequency bands, the
Upper 700 MHz D Block licensee will
publish IP-based specifications
describing how such other public safety
networks may access the Upper 700
MHz D Block licensee’s Shared Wireless
Broadband Network via bridges and/or
gateways. The Upper 700 MHz D Block
licensee shall charge these other public
safety networks for such access no more
than the relevant fee established or
approved by the Commission. Public
safety users shall bear the costs of the
bridges and gateways, including
installation and maintenance costs.
(4) The Shared Wireless Broadband
Network shall support a Voice over
Internet Protocol (VoIP) capability to
complement existing public safety
mission critical voice communication
systems. The VoIP capability shall allow
interconnection with the Public
Switched Telephone Network as well as
with other public safety VoIP users on
the network. VoIP features will include
but not be limited to Push-To-Talk.
(b) Availability, robustness, and
hardening requirements as follows:
(1) The Shared Wireless Broadband
Network shall provide 99.6 percent
network availability for all terrestrial
elements of operation in the coverage
areas certified pursuant to § 27.14(o)(1),
calculated over each license area
annually, starting four years after
license issuance. The Upper 700 MHz D
Block licensee shall use commercially
reasonable efforts to provide network
availability above this requirement, with
the target of 99.9 percent network
availability.
(2) The method for measuring
availability shall be defined in the
Network Sharing Agreement, which
shall
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(i) Be a measure of infrastructure
availability as measured from the cell
site radio antenna through and across
the core network;
(ii) Exclude radio signal coverage and
scheduled maintenance downtime with
prior notice to the Public Safety
Broadband Licensee;
(iii) Exclude outages caused by
actions or events outside the reasonable
control of the Upper 700 MHz D Block
licensee; and
(iv) Exclude outages only affecting
limited applications.
(3) The Shared Wireless Broadband
Network design specifications shall
include commercial best practices, such
as Network Reliability and
Interoperability Council best practices,
that take into consideration local
influencing factors such as weather,
geology, and building codes on network
attributes such as hardening of
transmission facilities and antenna
towers, extended backup power, seismic
safety standards, and accommodations
for wind, ice, and other natural
phenomenon.
(4) The Upper 700 MHz D Block
licensee and the Public Safety
Broadband Licensee, in consultation
with the relevant community, shall
jointly designate ‘‘critical’’ sites. The
designation of sites as ‘‘critical’’ shall
not be required to cover more than 35
percent of the Shared Wireless
Broadband Network sites for the Upper
700 MHz D Block license; however, the
Upper 700 MHz D Block licensee shall
use commercially reasonable efforts to
designate as ‘‘critical’’ additional sites
requested by the Public Safety
Broadband Licensee, up to 50 percent of
all the licensee’s sites. Sites designated
as ‘‘critical’’ shall have battery backup
power of 8 hours, and shall have
generators with a fuel supply sufficient
to operate the generators for at least 48
hours. The Upper 700 MHz D Block
licensee shall make commercially
reasonable efforts to provide a fuel
supply at ‘‘critical’’ sites above this
requirement sufficient for a minimum of
5 days. The Upper 700 MHz D Block
licensee and the Public Safety
Broadband Licensee, in consultation
with the relevant community, shall
jointly determine the sites that will
require redundant backhaul in order to
comply with the network availability
requirements in this section.
(5) The Upper 700 MHz D Block
Licensee and the Public Safety
Broadband Licensee may agree on other
methods to improve network resiliency
in lieu of designating ‘‘critical’’ cell sites
as described in paragraph (b)(4) of this
section. These may include deployment
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of mobile assets or the use of satellite
facilities.
(c) A capability incorporated into the
Shared Wireless Broadband Network
infrastructure to provide monthly usage
reports covering network capacity and
priority access so that the Public Safety
Broadband Licensee can monitor usage
and provide appropriate feedback to the
Upper 700 MHz D Block licensee on
operational elements of the network.
(d) Security and encryption consistent
with commercial best practices. For
purposes of complying with this
paragraph, the Upper 700 MHz D Block
licensee shall:
(1) Comply with U.S. government
standards, guidelines, and models that
are commercial best practices for
wireless broadband networks.
(2) Implement controls to ensure that
public safety priority and secure
network access are limited to authorized
public safety users and devices, and
utilize an open standard protocol for
authentication.
(3) Allow for public safety network
authentication, authorization, automatic
logoff, transmission secrecy and
integrity, audit control capabilities, and
other unique attributes.
(e) A mechanism to ensure Quality of
Service (QoS) for public safety and to
establish various levels of priority for
public safety communications. The
Upper 700 MHz D Block licensee shall
not be obligated to implement this
provision before appropriate standards
are developed and appropriate hardware
and software are available on
commercially reasonable terms. The
Upper 700 MHz D Block Licensee and
the Public Safety Broadband Licensee
shall use reasonable efforts to work with
applicable standards organizations,
network equipment manufacturers, and
other suppliers to accelerate the
commercially reasonable availability of
these features for the Shared Wireless
Broadband Network. The Public Safety
Broadband Licensee shall have
authority to establish access priority and
service levels, and authenticate and
authorize public safety users. In
addition, the following provisions for
QoS shall be incorporated into the
operational capabilities of the Shared
Wireless Broadband Network.
(1) Priority shall be defined as Public
Safety Broadband Licensee-approved
user or class of users, network,
application, and services priorities that,
via user or class of users or device
identification, or both, offer the highest
assignable levels of priority for network
access and use of network resources,
services, and applications.
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(2) The Shared Wireless Broadband
Network shall provide emergency
priority access pursuant to § 27.1307(e).
(3) The Shared Wireless Broadband
Network shall provide an appropriate
priority to 9–1–1 calls.
(4) QoS resource reservation and
session control mechanisms shall be
incorporated into the operational
capabilities of the Shared Wireless
Broadband Network.
(5) QoS shall be considered to be the
full class of mechanisms that are found
at multiple IP layers in the network
(both radio access network and core),
and that provision and apply priority for
IP packet based traffic.
(6) The assignment of network
resources shall enable user or service
priority, or both, in addition to the QoS
requirements of the application.
(7) The Shared Wireless Broadband
Network shall support multiple IP data
services and application session flows
between a user device and network,
where each flow may have a different
QoS requirement and priority level.
(8) If network resources are not
available to meet a resource reservation
request, the Shared Wireless Broadband
Network shall have the ability to
provide a new QoS consistent with the
limited network resources.
(f) Operational capabilities to support
public safety systems as specified
below:
(1) The Shared Wireless Broadband
Network shall provide access for all
applications and services, hosted
applications and services, and third
party public safety applications and
services specified in the Network
Sharing Agreement. The Public Safety
Broadband Licensee shall give
consideration of particular applications
to the overall impact on overall system
performance.
(2) The Shared Wireless Broadband
Network shall provide for the
application data rates shown in Table 1.
(3) The Shared Wireless Broadband
Network shall be designed to provide
edge of cell data rates shown in Table
2. Typical data rates should be designed
for at least 1 Mbs downlink and 600
kbps uplink. The data link speeds for
public safety users must be at least as
fast as the best data speeds provided to
commercial users of the Shared Wireless
Broadband Network.
(4) The Shared Wireless Broadband
Network must provide indoor coverage
for VoIP consistent with the propagation
parameters shown in Table 3.
(5) For purposes of these Tables 2 and
3, the following definitions apply in
terms of population per square mile:
dense urban: 15,000 people or greater;
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urban 2,500–14,999; suburban 200–
2,499; and rural 0–199.
(6) The data rates in this section are
design objectives and are not to be
applied for a particular device, time or
location.
(7) Signal coverage, propagation, and
capacity parameters in Table 2 and 3
shall be reviewed by the Upper 700
MHz D Block licensee and the Public
Safety Broadband Licensee no less than
every four years to assess the impact of
benefits from technology evolution and
general improvement in network
coverage consistent with paragraph
(a)(2) of this section.
TABLE 1 TO § 90.1405—APPLICATIONS AND SERVICES QOS ATTRIBUTES
Application/service
Description
File transfer ...........................................
Email .....................................................
Web browsing .......................................
Mobile voice ..........................................
Push to talk (PTT) voice .......................
FTP and general data upload /download ...........................................................
Both Web based and Entity Hosted E-Mail Service ..........................................
Intranet, extranet, and internet ...........................................................................
Equivalent to current commercial mobile voice .................................................
Commercial grade PTT / PoC offerings with group call, alerting, and monitoring capability.
Video that is transmitted from inside a building .................................................
Video that is transmitted from the street ............................................................
All location based services .................................................................................
Remote databases access both under the entities’ direct control as well as
databases that are local.
Instant messaging, SMS, and Push to X services ............................................
Network operational and maintenance data including over the air programming and remote client management.
Data as it relates to computer aided dispatching. .............................................
General category for traffic that does not fall within any of the categories described above, and that generates less than 64kb of data per second.
Remote measurement and reporting of information for radio devices, vehicles, and sensor data.
Secure remote access to entity LAN and WAN environments ..........................
Indoor video ..........................................
Outdoor video .......................................
Location services ..................................
Database transactions ..........................
Messaging .............................................
Network Operations data ......................
Dispatch data ........................................
Generic traffic ........................................
Telemetry ..............................................
Virtual Private Networking ....................
Data rate
Greater than 256kb/s.
Less than 16kb/s.
Greater than 32kb/s.
Minimum 15kb/s.
4–25kb/s.
20–384kb/sF.
32–384kb/s.
Less than 16kb/s.
Less than 32kb/s.
Less than 16kb/s.
Less than 32kb/s.
Less than 64kb/s.
Less than 64kb/s.
70–120 kb/s.
64—256 kb/s.
TABLE 2 TO § 90.1405—DATA PROPAGATION AND CAPACITY PARAMETERS
Cell coverage
area reliability
Sector loading
factor
95%
95%
95%
95%
95%
Morphology
70%
70%
70%
70%
70%
Dense Urban .............................................
Urban ........................................................
Suburban ..................................................
Rural .........................................................
Highway ....................................................
Forward link throughput on-street single
user average cell-edge
256 kbps ...................................................
256 kbps ...................................................
128 kbps ...................................................
128 kbps ...................................................
64 kbps .....................................................
Reverse link throughput on-street single
user average celledge
256 kbps
256 kbps
128 kbps
128 kbps
64 kbps
TABLE 3 TO § 90.1405—VOICE PROPAGATION AND CAPACITY PARAMETERS
Cell coverage
area reliability
Morphology
In-building penetration margin
Dense Urban ................................................................
Urban ............................................................................
Suburban ......................................................................
Rural .............................................................................
Highway ........................................................................
22 dB ............................................................................
19 dB ............................................................................
13 dB ............................................................................
6 dB ..............................................................................
6 dB ..............................................................................
17. Section 90.1407 is amended by
adding paragraphs (d) and (e) to read as
follows:
§ 90.1407
Spectrum use in the network.
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(d) The Upper 700 MHz D Block
licensee may construct and operate the
Shared Wireless Broadband Network
using both the 758–763 MHz and 788–
793 MHz bands as well as the 763–768
MHz and 793–798 MHz bands as a
combined resource. If the Upper 700
MHz D Block licensee chooses to
operate the spectrum as a combined
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resource, however, 50 percent of the
capacity available from the combined 20
megahertz of spectrum must be assigned
to public safety users and the other 50
percent must be assigned to the
commercial users, consistent with the
respective capacity and priority rights of
the Upper 700 MHz D Block license and
the Public Safety Broadband License
and with rules in this Part.
(e) Emergency Priority Access. (1) The
Upper 700 MHz D Block licensee must
provide public safety users priority
access to, but not preemptive use of, up
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Sector loading
factor
95%
95%
95%
95%
95%
70%
70%
70%
70%
70%
to 40 percent of the commercial
spectrum capacity (two megahertz in
each of the uplink and downlink
blocks), assuming the full public safety
broadband block spectrum capacity is
being used, for an aggregate total of 14
megahertz of overall network capacity
in the following circumstances:
(i) The President or a state governor
declares a state of emergency.
(ii) The President or a state governor
issues an evacuation order impacting
areas of significant scope.
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(iii) The national or airline sector
threat level is set to red.
(2) The D Block licensee must provide
priority access to, but not preemptive
use of, up to 20 percent of the
commercial spectrum capacity (one
megahertz in each of the uplink and
downlink blocks) in the following
circumstances:
(i) The National Weather Service
issues a hurricane or flood warning
likely to impact a significant area.
(ii) The occurrence of other major
natural disasters, such as tornado
strikes, tsunamis, earthquakes, or
pandemics.
(iii) The occurrence of manmade
disasters or acts of terrorism of a
substantial nature.
(iv) The occurrence of power outages
of significant duration and scope.
(v) The national threat level is set to
orange.
(3) The Upper 700 MHz D Block
licensee must assign the next available
channel to the requesting public safety
user over a commercial user—i.e., the
public safety user would be placed at
the top of the queue—and should not
preempt a commercial call in progress.
Emergency priority access is limited to
the time and geographic scope of the
emergency.
(4) To trigger emergency priority
access, the Public Safety Broadband
Licensee must request, on behalf of the
impacted public safety agencies, that the
Upper 700 MHz D Block licensee
provide such access. Emergency priority
access requests initiated by the Public
Safety Broadband Licensee will cover a
24-hour time period, and must be
reinitiated by the Public Safety
Broadband Licensee for each 24-hour
time period thereafter that the priority
access is required.
(5) In the event that the Upper 700
MHz D Block licensee and the Public
Safety Broadband Licensee do not agree
that an emergency has taken place, the
Public Safety Broadband Licensee may
request the Defense Commissioner to
resolve the dispute.
18. Section 90.1410 is amended by
revising paragraphs (c), (d), (f), (g), and
(j), and adding paragraphs (k) through
(n), to read as follows:
§ 90.1410
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(c) The definition of ‘‘emergency’’ for
purposes of emergency priority access,
as described in § 90.1407(e).
(d) All service fees to be imposed for
services to public safety, including fees
for normal network service,
interconnected service, and fees for
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priority access to the D Block spectrum
in an emergency.
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(f) The right of the Public Safety
Broadband Licensee to determine and
approve the specifications of public
safety equipment used on the network
and the right to purchase its own
subscriber equipment from any vendor
it chooses, to the extent such
specifications and equipment are
consistent with reasonable network
management requirements.
(g) The terms, conditions, and
timeframes pursuant to which the
Upper 700 MHz D Block licensee must
make available at least one handset
suitable for public safety use that
includes an integrated satellite solution.
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*
(j) To the extent that interoperability
arrangements between the Upper 700
MHz D Block licensee and the Public
Safety Broadband Licensee are required
under § 90.1405(a)(1), the terms and
conditions of the arrangement,
including the terms and conditions
under which roaming will be provided
to public safety users of other Shared
Wireless Broadband Networks.
(k) The terms of a standard agreement
under which public safety networks
operating in other frequency bands may
connect to the Shared Wireless
Broadband Network pursuant to and in
accordance with § 90.1405(a)(1).
(l) Terms regarding the establishment
of access priorities, service levels and
related requirements, and approval of
public safety applications and end user
devices, by the Public Safety Broadband
Licensee.
(m) A process for forecasting demand
for public safety usage.
(n) A contract term, not to exceed a
15 year period that coincides with the
terms of the Upper 700 MHz D Block
license and the Public Safety Broadband
License.
19. Section 90.1415 is amended by
revising paragraphs (a), (b), (c), (f)(4),
and (g) to read as follows:
§ 90.1415 Establishment, execution, and
application of the network sharing
agreement.
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(a) Approval of NSA as pre-condition
for granting the Upper 700 MHz D Block
License. The Commission shall not grant
an Upper 700 MHz D Block license until
the winning bidder for the subject
Upper 700 MHz D Block license has
negotiated an NSA and such other
agreements as the Commission may
require or allow with the Public Safety
Broadband Licensee, and the NSA and
related agreements, or documents have
been approved by the Commission and
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executed by the required parties. Parties
to the NSA must also include the Upper
700 MHz D Block licensee, a Network
Assets Holder, and an Operating
Company, as these entities are defined
in § 27.4 of this chapter.
(b) Requirement of negotiation.
Negotiation of an NSA between a
winning bidder for an Upper 700 MHz
D Block license and the Public Safety
Broadband Licensee must commence by
the date the winning bidder files its long
form application or the date on which
the Commission designates the Public
Safety Broadband Licensee, whichever
is later, and must conclude within six
months of that date. Parties to this
negotiation are required to negotiate in
good faith. Two members of the
Commission staff, one from the Wireless
Telecommunications Bureau and one
from the Public Safety and Homeland
Security Bureau, shall be present at all
stages of the negotiation as neutral
observers.
(c) Reporting requirements. A winning
bidder for the Upper 700 MHz D Block
license must file a report with the
Commission within 10 business days of
the commencement of the negotiation
period certifying that active and good
faith negotiations have begun, providing
the date on which they commenced, and
providing a schedule of the initial dates
on which the parties intend to meet for
active negotiations, covering at a
minimum the first 30-day period.
Beginning three months from the
triggering of the six-month negotiation
period, the winning bidder for a Upper
700 MHz D Block license and the Public
Safety Broadband Licensee must jointly
provide detailed reports, on a monthly
basis and subject to a request for
confidential treatment, on the progress
of the negotiations throughout the
remainder of the negotiations. These
reports must include descriptions of all
material issues that the parties have yet
to resolve.
*
*
*
*
*
(f) * * *
(4) Determining that no resolution of
the disputed issues can be made
consistent with the public interest.
(g) Lack of a Commission-approved
NSA and such other agreements as the
Commission may require or allow. If a
winning bidder chooses not to execute
a Commission-approved NSA or such
other agreements as the Commission
may require or allow within 10 business
days of Commission approval, the
winning bidder’s long-form application
will be dismissed, the winning bidder
will be deemed to have defaulted under
§ 1.2109(c) of this chapter, and the
winning bidder will be liable for the
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default payment specified in
§ 1.2104(g)(2) of this chapter and
§ 27.501(b)(3). In all other circumstances
in which the parties do not submit
executed copies of a Commissionapproved NSA and such other
agreements within the time permitted
by this section, the winning bidder’s
long-form application will be dismissed
and any payments made toward the
winning bid will be returned to the
payor(s) of record.
20. Section 90.1430 is amended by
revising paragraph (b) introductory text
and paragraph (b)(4) to read as follows:
§ 90.1430 Local public safety build-out and
operation.
*
*
*
*
*
(b) Rights to early build-out in areas
with a build-out commitment. In an area
where the Upper 700 MHz D Block
licensee has committed, in the NSA, to
build out by a certain date, a public
safety entity may, with the pre-approval
of the Public Safety Broadband Licensee
and the Upper 700 MHz D Block
licensee, and subject to the
requirements set forth herein, construct
a broadband network in that area at its
own expense so long as the network is
capable of operating on the Shared
Wireless Broadband Network and meets
all the requirements and specifications
of the network required under the NSA.
*
*
*
*
*
(4) Attribution of early build-out to
applicable construction benchmarks.
Upon completion of construction,
transfer of ownership to the Upper 700
MHz D Block licensee, and
compensation as required herein, if
applicable, the Upper 700 MHz D Block
licensee may include the network
Number
1
2
3
4
5
6
7
8
.............
.............
.............
.............
.............
.............
.............
.............
9 .............
10 ...........
11 ...........
12 ...........
13 ...........
14 ...........
15 ...........
16 ...........
17 ...........
18 ...........
19 ...........
20 ...........
jlentini on PROD1PC65 with PROPOSALS2
21
22
23
24
25
26
27
28
...........
...........
...........
...........
...........
...........
...........
...........
29
30
31
32
33
34
35
36
37
38
39
40
...........
...........
...........
...........
...........
...........
...........
...........
...........
...........
...........
...........
constructed pursuant to the early buildout provisions herein for purposes of
determining whether it has met its
build-out benchmarks and the build-out
requirements of the NSA.
*
*
*
*
*
21. Section 90.1440 is amended by
adding paragraph (c) to read as follows:
§ 90.1440
Reporting obligations.
*
*
*
*
*
(c) The Upper 700 MHz D Block
licensee must provide regular monthly
reports on network usage to the Public
Safety Broadband Licensee.
Note: The following appendices will not
appear in the code of Federal Regulations:
Appendix A
Geographical Boundaries of the 58
Public Safety Regions
States, counties and territories included in regions
Alabama.
Alaska.
Arizona.
Arkansas.
California—South (to the northernmost borders of San Luis Obispo, Kern, and San Bernardino Counties).
California—North (that part of California not included in California-South).
Colorado.
New York-Metropolitan—New York: Bronx, Kings, Nassau, New York, Orange, Putnam, Queens, Richmond, Rockland, Suffolk, Sullivan, Ulster, Dutchess, and Westchester Counties; New Jersey: Bergen, Essex, Hudson, Morris, Passaic, Sussex, Union, Warren,
Middlesex, Somerset, Hunterdon, Mercer, and Monmouth Counties.
Florida.
Georgia.
Hawaii.
Idaho.
Illinois (all except area in Region 54).
Indiana (all except area in Region 54).
Iowa.
Kansas.
Kentucky.
Louisiana.
New England—Maine; New Hampshire; Vermont; Massachusetts; Rhode Island; Connecticut.
Maryland; Washington, D.C.; Virginia—Northern (Arlington, Fairfax, Fauquier, Loudoun, Prince William and Stafford Counties; and
Alexandria, Fairfax, Falls Church, Manassas and Manassas Park Cities).
Michigan.
Minnesota.
Mississippi.
Missouri.
Montana.
Nebraska.
Nevada.
New Jersey (except for counties included in the New York—Metropolitan, Region 8, above) Pennsylvania (Bucks, Chester, Montgomery, Philadelphia, Berks, Delaware, Lehigh, Northampton, Bradford, Carbon, Columbia, Dauphin, Lackawanna, Lancaster,
Lebanon, Luzerne, Lycoming, Monroe, Montour, Northumberland, Pike, Schuylkill, Sullivan, Susquehanna, Tioga, Wayne, Wyoming and York Counties); Delaware.
New Mexico.
New York—Albany (all except area in New York—Metropolitan, Region 8, and New York—Buffalo, Region 55).
North Carolina.
North Dakota.
Ohio.
Oklahoma.
Oregon.
Pennsylvania (all except area in Region 28, above).
South Carolina.
South Dakota.
Tennessee.
Texas—Dallas (including the counties of Cooke, Grayson, Fannin, Lamar, Red River, Bowie, Wise, Denton, Collin, Hunt, Delta, Hopkins, Franklin, Titus, Morris, Cass, Tarrant, Dallas, Palo Pinto, Parker, Rockwall, Kaufman, Rains, VanZandt, Wood, Smith, Camp,
Upshur, Gregg, Marion, Harrison, Panola, Rusk, Cherokee, Anderson, Henderson, Navarro, Ellis, Johnson, Hood, Somervell and
Erath).
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Number
41
42
43
44
45
46
47
48
49
...........
...........
...........
...........
...........
...........
...........
...........
...........
50 ...........
51 ...........
52 ...........
53 ...........
54 ...........
55 ...........
56 ...........
57 ...........
58 ...........
57845
States, counties and territories included in regions
Utah.
Virginia (all except area in Region 20, above).
Washington.
West Virginia.
Wisconsin (all except area in Region 54).
Wyoming.
Puerto Rico.
U.S. Virgin Islands.
Texas—Austin (including the counties of Bosque, Hill, Hamilton, McLennan, Limestone, Freestone, Mills, Coryell, Falls, Robertson,
Leon, San Saba, Lampasas, Bell, Milam, Brazos, Madison, Grimes, Llano, Burnet, Williamson, Burleson, Lee, Washington, Blanco, Hays, Travis, Caldwell, Bastrop, and Fayette).
Texas—El Paso (including the counties of Knox, Kent, Stonewall, Haskell, Throckmorton, Gaines, Dawson, Borden, Scurry, Fisher,
Jones, Shackelford, Stephens, Andrews, Martin, Howard, Mitchell, Nolan, Taylor, Callahan, Eastland, Loving, Winkler, Ector, Midland, Glasscock, Sterling, Coke, Runnels, Coleman, Brown, Comanche, Culberson, Reeves, Ward, Crane, Upton, Reagan, Irion,
Tom Green, Concho, McCulloch, Jeff Davis, Hudspeth, El Paso, Pecos, Crockett, Schleicher, Menard, Mason, Presidio, Brewster,
Terrell, Sutton, and Kimble).
Texas—Houston (including the counties of Shelby, Nacogdoches, San Augustine, Sabine, Houston, Trinity, Angelina, Walker, San
Jacinto, Polk, Tyler, Jasper, Newton, Montgomery, Liberty, Hardin, Orange, Waller, Harris, Chambers, Jefferson, Galveston,
Brazoria, Fort Bend, Austin, Colorado, Wharton, and Matagorda).
Texas—Lubbock (including the counties of Dallam, Sherman, Hansford, Ochiltree, Lipscomb, Hartley, Moore, Hutchinson, Roberts,
Hemphill, Oldham, Potter, Carson, Grey, Wheeler, Deaf Smith, Randall, Armstrong, Donley, Collingsworth, Parmer, Castro, Swisher, Briscoe, Hall, Childress, Bailey, Lamb, Hale, Floyd, Motley, Cottle, Hardeman, Foard, Wilbarger, Witchita, Clay, Montague,
Jack, Young, Archer, Baylor, King, Dickens, Crosby, Lubbock, Kockley, Cochran, Yoakum, Terry, Lynn, and Garza).
Texas—San Antonio (including the counties of Val Verde, Edwards, Kerr, Gillespie, Real, Bandera, Kendall, Kinney, Uvalde, Medina,
Bexar, Comal, Guadalupe, Gonzales, Lavaca, Dewitt, Karnes, Wilson, Atascosa, Frio, Zavala, Maverick, Dimmit, LaSalle,
McMullen, Live Oak, Bee, Goliad, Victoria, Jackson, Calhoun, Refugio, Aransas, San Patricio, Nueces, Jim Wells, Duval, Webb,
Kleberg, Kenedy, Brooks, Jim Hogg, Zapata, Starr, Hidalgo, Willacy, and Cameron).
Chicago—Metropolitan—Illinois: Winnebago, McHenry, Cook, Kane, Kendall, Grundy, Boone, Lake, DuPage, DeKalb, Will, and Kankakee Counties; Indiana: Lake, LaPorte, Jasper, Starke, St. Joseph, Porter, Newton, Pulaski, Marshall, and Elkart Counties; Wisconsin: Kenosha, Milwaukee, Washington, Dodge, Walworth, Jefferson, Racine, Ozaukee, Waukesha, Dane, and Rock Counties.
New York—Buffalo (including the counties of Niagara, Chemung, Schuyler, Seneca, Erie, Chautauqua, Cattaraugus, Allegany, Wyoming, Genesee, Orleans, Monroe, Livingston, Steuben, Ontario, Wayne, and Yates).
Guam and the Northern Mariana Islands.
American Samoa.
Gulf of Mexico.
Appendix B
PERFORMANCE TIERS BY PUBLIC SAFETY REGION
8 ..............
New York—Metropolitan ...........................................
19,092,214
9,841
1,940.1
47
48
57
54
20
56
28
jlentini on PROD1PC65 with PROPOSALS2
PSR name
............
............
............
............
............
............
............
Puerto Rico ...............................................................
U.S. Virgin Islands ....................................................
American Samoa ......................................................
Chicago—Metropolitan ..............................................
Maryland; Washington, DC; Virginia—Northern .......
Guam and the Northern Mariana Islands .................
New Jersey, Pennsylvania, Delaware ......................
3,808,610
108,612
57,291
12,685,330
7,831,327
224,026
10,526,480
3,425
134
77
17,100
12,070
389
22,729
1,112.1
810.5
744.0
741.8
648.8
575.9
463.1
5 ..............
9 ..............
33 ............
55 ............
51 ............
19 ............
California—South ......................................................
Florida .......................................................................
Ohio ...........................................................................
New York—Buffalo ....................................................
Texas—Houston .......................................................
Maine, New Hampshire, Vermont, Massachusetts,
Rhode Island, Connecticut.
Texas—Dallas ...........................................................
Hawaii .......................................................................
20,637,512
15,982,378
11,353,140
2,852,351
5,618,958
13,922,517
56,512
53,927
40,948
11,780
25,166
62,809
365.2
296.4
277.3
242.1
223.3
221.7
6,503,125
1,211,537
30,589
6,423
212.6
188.6
40 ............
11 ............
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Total pops*
Land area
(SqM)*
PSR
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Density
03OCP2
Coverage required at end
of 15th year of license
term
Tier 1: 98% coverage required for PSRs with a
population density
equal to or greater than
500 pops per square
mile.
Tier 2: 94% coverage required for PSRs with a
population density
equal to or greater than
100 pops per square
mile and less than 500
pops per square mile.
57846
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PERFORMANCE TIERS BY PUBLIC SAFETY REGION—Continued
Total pops*
Land area
(SqM)*
PSR
PSR name
Density
21 ............
36 ............
31 ............
14 ............
10 ............
39 ............
42 ............
37 ............
6 ..............
30 ............
18 ............
17 ............
49 ............
Michigan ....................................................................
Pennsylvania .............................................................
North Carolina ...........................................................
Indiana ......................................................................
Georgia .....................................................................
Tennessee ................................................................
Virginia ......................................................................
South Carolina ..........................................................
California—North .......................................................
New York—Albany ....................................................
Louisiana ...................................................................
Kentucky ...................................................................
Texas—Austin ...........................................................
9,938,444
4,801,690
8,049,313
4,763,619
8,186,453
5,689,283
5,115,733
4,012,012
13,234,136
3,182,726
4,468,976
4,041,769
2,254,226
56,804
27,672
48,711
31,283
57,906
41,217
37,360
30,109
99,447
29,379
43,562
39,728
24,263
175.0
173.5
165.2
152.3
141.4
138.0
136.9
133.2
133.1
108.3
102.6
101.7
92.9
43 ............
1 ..............
24 ............
13 ............
44 ............
53 ............
22 ............
23 ............
45 ............
15 ............
4 ..............
34 ............
3 ..............
7 ..............
35 ............
16 ............
41 ............
26 ............
50 ............
52 ............
27 ............
12 ............
29 ............
38 ............
32 ............
25 ............
46 ............
2 ..............
58 ............
Washington ...............................................................
Alabama ....................................................................
Missouri .....................................................................
Illinois ........................................................................
West Virginia .............................................................
Texas—San Antonio .................................................
Minnesota ..................................................................
Mississippi .................................................................
Wisconsin ..................................................................
Iowa ...........................................................................
Arkansas ...................................................................
Oklahoma ..................................................................
Arizona ......................................................................
Colorado ....................................................................
Oregon ......................................................................
Kansas ......................................................................
Utah ...........................................................................
Nebraska ...................................................................
Texas—El Paso ........................................................
Texas—Lubbock .......................................................
Nevada ......................................................................
Idaho .........................................................................
New Mexico ..............................................................
South Dakota ............................................................
North Dakota .............................................................
Montana ....................................................................
Wyoming ...................................................................
Alaska .......................................................................
Gulf of Mexico ...........................................................
5,894,121
4,447,100
5,595,211
3,722,488
1,808,344
3,916,309
4,919,479
2,844,658
2,692,016
2,926,324
2,673,400
3,450,654
5,130,632
4,301,261
3,421,399
2,688,418
2,233,169
1,711,263
1,472,545
1,086,657
1,998,257
1,293,953
1,819,046
754,844
642,200
902,195
493,782
626,932
........................
66,544
50,744
68,886
49,049
24,078
53,562
79,610
46,907
48,327
55,869
52,068
68,667
113,635
103,718
95,997
81,815
82,144
76,872
72,617
55,600
109,826
82,747
121,356
75,885
68,976
145,552
97,100
571,951
250,922
Coverage required at end
of 15th year of license
term
88.6
87.6
81.2
75.9
75.1
73.1
61.8
60.6
55.7
52.4
51.3
50.3
45.2
41.5
35.6
32.9
27.2
22.3
20.3
19.5
18.2
15.6
15.0
9.9
9.3
6.2
5.1
1.1
........................
Tier 3: 90% coverage required for PSRs with a
population density less
than 100 pops per.
square mile.
jlentini on PROD1PC65 with PROPOSALS2
* Based on 2000 U.S. Census Data.
The first 55 Public Safety Regions are defined in Public Safety 700 MHz Band—General Use Channels: Approval of Changes to Regional
Planning Boundaries of Connecticut and Michigan, Public Notice, 16 FCC Rcd 16359 (2001).
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57847
Appendix C
Relocation Costs By 700 MHz RPC
Region
Region
Region
Region
Region
Region
Region
Region
Region
Region
Region
Region
Region
Region
Region
Region
Region
Region
Region
Region
Region
Region
Region
Region
Region
Region
Amount
3 (Arizona) ...........................................................................................................................................................................
4 (Arkansas) ........................................................................................................................................................................
7 (Colorado) ........................................................................................................................................................................
11 (Hawaii) ..........................................................................................................................................................................
12 (Idaho) ............................................................................................................................................................................
13 (Illinois) 982 .....................................................................................................................................................................
17 (Kentucky) ......................................................................................................................................................................
18 (Louisiana) .....................................................................................................................................................................
19 (New England) 983 ..........................................................................................................................................................
22 (Minnesota) ....................................................................................................................................................................
23 (Mississippi) ...................................................................................................................................................................
24 (Missouri) .......................................................................................................................................................................
26 (Nebraska) .....................................................................................................................................................................
27 (Nevada) ........................................................................................................................................................................
30 (New York—Albany) 984 .................................................................................................................................................
31 (North Carolina) .............................................................................................................................................................
33 (Ohio) .............................................................................................................................................................................
35 (Oregon) .........................................................................................................................................................................
39 (Tennessee) ...................................................................................................................................................................
41 (Utah) .............................................................................................................................................................................
42 (Virginia) 985 ...................................................................................................................................................................
43 (Washington) ..................................................................................................................................................................
49 (Texas—Austin) .............................................................................................................................................................
51 (Texas—Houston) ..........................................................................................................................................................
$1,610,100.00
1,124,900.00
2,276,800.00
53,000.00
723,200.00
2,885,800.00
2,472,600.00
3,979,700.00
414,400.00
186,000.00
401,000.00
244,100.00
366,400.00
783,000.00
78,100.00
826,200.00
3,893,000.00
7,200.00
231,100.00
204,100.00
2,614,800.00
209,700.00
63,800.00
1,034,600.00
Total Relocation Costs .............................................................................................................................................................
26,683,600.00
Appendix D
NSA Term Sheet
Draft Network Sharing Agreement (NSA)
Term Sheet Public/Private Partnership
The following terms are to be incorporated
into all Network Sharing Agreements
between each D Block licensee and the
Public Safety Broadband Licensee, to
effectuate the 700 MHz public/private
partnership.
Term of Agreement
• The term of the Network Sharing
Agreement is 15 years. Extension of the term
of the NSA or amendments to any of the
major terms must be submitted to the Federal
Communications Commission for approval.
Spectrum Use
The D Block licensee(s) must provide
public safety users with primary access to 10
megahertz of spectrum capacity at all times.
jlentini on PROD1PC65 with PROPOSALS2
During Emergencies
• The D Block licensee must provide
public safety users emergency access to the
D Block commercial capacity only in the
event of an ‘‘emergency,’’ which is defined as
follows:
• The declaration of a state of emergency
by the President or a state governor.
982 Illinois’ narrowband certification for Region
13 also includes narrowband facilities in Region 54
(Chicago Metro area).
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• The issuance of an evacuation order by
the President or a state governor impacting
areas of significant scope.
• The issuance by the National Weather
Service of a hurricane or flood warning likely
to impact a significant area.
• The occurrence of other major natural
disasters, such as tornado strikes, tsunamis,
earthquakes, or pandemics.
• The occurrence of manmade disasters or
acts of terrorism of a substantial nature.
• The occurrence of power outages of
significant duration and scope.
• The elevation of the national threat level
to either orange or red for any portion of the
United States, or the elevation of the threat
level in the airline sector or any portion
thereof, to red.
• The D Block licensee(s) must provide
public safety users priority access to, but not
preemptive use of, up to 40 percent of the
commercial D Block spectrum capacity (i.e.,
2 megahertz in each of the uplink and
downlink blocks), assuming the full public
safety broadband block spectrum capacity is
being used, for an aggregate total of 14
megahertz of overall network capacity in the
following circumstances: The President or a
state governor declares a state of emergency;
the President or a state governor issues an
evacuation order impacting areas of
significant scope; or the national or airline
sector threat is set to red. In these
circumstances, the D Block licensee(s) must
assign the next available channel to the
requesting public safety user over a
commercial user—i.e., the public safety user
would be placed at the top of the queue—and
would not preempt a commercial call in
progress. The right to priority access must be
limited to the time and geographic scope of
the emergency.
• The D Block licensee(s) must provide
priority access to, but not preemptive use of,
up to 20 percent of the commercial spectrum
capacity (i.e., 1 megahertz in each of the
uplink and downlink blocks) in the following
circumstances: The issuance by the National
Weather Service of a hurricane or flood
warning likely to impact a significant area;
the occurrence of other major natural
disasters, such as tornado strikes, tsunamis,
earthquakes, or pandemics; the occurrence of
manmade disasters or acts of terrorism of a
substantial nature; the occurrence of power
outages of significant duration and scope; or
the elevation of the national threat level to
orange for any portion of the United States.
The right to priority access must be limited
to the time and geographic scope of the
emergency.
• To trigger priority access, the PSBL must
request, on behalf of the impacted public
safety agencies, that the D Block licensee
provide such access. Priority access requests
initiated by the PSBL will cover a 24-hour
983 Region 19 (New England) includes six states:
Maine, New Hampshire, Vermont, Massachusetts,
Rhode Island, and Connecticut.
984 New York’s narrowband certification for
Region 30 also includes narrowband facilities in
Region 55 (New York—Buffalo) and Region 8 (New
York City Metro area).
985 Virginia’s narrowband certification for Region
42 also includes narrowband facilities in Region 20
(Northern Virginia/DC Metro).
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Federal Register / Vol. 73, No. 193 / Friday, October 3, 2008 / Proposed Rules
jlentini on PROD1PC65 with PROPOSALS2
time period, and must be reinitiated by the
PSBL for each 24-hour time period thereafter
that the priority access is required.
• In the event that the D Block licensee
and the PSBL do not agree that an emergency
has taken place, the PSBL may ask the
Defense Commissioner to resolve the dispute.
Performance Requirements
• D Block licensee(s) are required to
provide signal coverage and offer service to
at least 40 percent of the population in each
PSR by the end of the fourth year, and 75
percent by the end of the tenth year. D Block
licensee(s) will be required to meet the
following final benchmarks 15 years after the
issuance of their license(s):
• PSRs with a population density less than
100 people per square mile, the licensee(s)
will be required to provide signal coverage
and offer service to at least 90 percent of the
population by the end of the fifteenth year;
• PSRs with a population density equal to
or greater than 100 people per square mile
and less than 500 people per square mile, the
licensee(s) will be required to provide signal
coverage and offer service to at least 94
percent of the population by the end of the
fifteenth year; and
• PSRs with a population density equal to
or greater than 500 people per square mile,
the licensee(s) will be required to provide
signal coverage and offer service to at least
98 percent of the population by the end of
the fifteenth year.
• These population coverage requirements
must be met on a PSR basis, and licensees
will have to use the most recently available
U.S. Census data at the time of measurement
to meet the requirements.
• To the extent that the D Block licensee
chooses to provide terrestrial commercial
services to population levels in excess of the
relevant benchmarks, the D Block licensee
must make the same level of coverage and
service available to public safety entities.
• In addition to the required population
benchmarks, D Block licensee(s) must
provide service to major highways,
interstates, and incorporated communities
with populations greater than 3,000 no later
than the end of the D Block license term. To
the extent that coverage of major highways,
interstates and incorporated communities
with populations in excess of 3,000 requires
the D Block licensee to extend coverage
beyond what is required to meet its
population benchmarks, coverage can be
provided through non-terrestrial means, such
as MSS or other such technologies.
• The D Block licensee and the Public
Safety Broadband Licensee must reach
agreement on a detailed build-out schedule
that is consistent with the performance
benchmarks. The build-out schedule must
identify the specific areas of the country that
will be built out and the extent to which
interstates within the D Block licensee’s
service area will be covered by each of the
performance deadlines. The D Block licensee
may determine, in consultation with the
Public Safety Broadband Licensee, which
particular areas of the country will be built
out by each deadline.
• The D Block licensee may modify its
population-based construction benchmarks
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where the D Block licensee and the Public
Safety Broadband Licensee reach agreement
and the Commission gives its prior approval
for a modification. No increase in the
performance requirements will be permitted
unless it is acceptable to the D Block
licensee.
• For the D Block licensee for the Gulf of
Mexico, the population-based benchmarks
shall be inapplicable, and the D Block
licensee for the Gulf of Mexico and the
Public Safety Broadband Licensee may
flexibly negotiate a coverage and service plan
for public safety use for that region as
needed.
Role and Responsibilities of the D Block
Licensee
• The D Block licensee has exclusive
responsibility for all traditional network
service provider operations, including
customer acquisition, network monitoring
and management, operational support and
billing systems, and customer care, in
connection with services provided to public
safety users.
• The D Block licensee is subject to
monthly network usage reporting
requirements that will enable monitoring of
its operations by the Commission and the
PSBL.
• The D Block Licensee will allow the
Public Safety Broadband Licensee to
determine and approve the specifications of
public safety equipment used on the
network. The public safety subscribers will
have right to purchase their own subscriber
equipments and applications from any
vendor they choose, to the extent such
specifications, equipments, and applications
are consistent with reasonable network
management requirements and compatible
with the network.
• If the D Block licensee chooses to adopt
a wholesale-only model with respect to the
D Block spectrum, it must ensure, though
arrangements such as the creation of a
subsidiary or by contracting with a third
party, that retail service will be provided to
public safety entities that complies with the
Commission’s regulatory requirements. This
arrangement to provide service to public
safety should be made part of the NSA.
Role and Responsibilities of the Public Safety
Broadband Licensee
The Public Safety Broadband Licensee’s
assigned duties will be as follows:
• General administration of access to the
763–768 MHz and 793–798 MHz bands by
individual public safety entities, as
facilitated through the establishment of
priority access, service levels and related
requirements negotiated into the NSA,
approving public safety applications and end
user devices, and related frequency
coordination duties.
• Regular interaction with and promotion
of the needs of the public safety entities with
respect to accessing and use of the national
public safety broadband network, within the
technical and operational confines of the
NSA.
• Interfacing with equipment vendors on
its own or in partnership with the D Block
licensee, as appropriate, to achieve and pass
PO 00000
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Fmt 4701
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on the benefits of economies of scale
concerning network and subscriber
equipment and applications.
• Sole authority, which cannot be waived
in the NSA, to approve, in consultation with
the D Block licensee, equipment and
applications for use by public safety entities
on the public safety broadband network.
• Responsibility to establish a means to
authorize and authenticate public safety
users. The Public Safety Broadband Licensee
may accomplish this by establishing its own
system that would accomplish these
functions or defining parameters that are
compatible with commercial technology and
can be easily implemented by the D Block
Licensee.
• Responsibility to facilitate negotiations
between the D Block license winner and local
and state entities to build out local and stateowned lands.
• Coordination of stations operating on
700 MHz public safety broadband spectrum
with 700 MHz public safety narrowband
stations, including management of the
internal public safety guard band.
• Oversight and implementation of the
relocation of narrowband public safety
operations in channels 63 and 68, and the
upper 1 megahertz of channels 64 and 69.
• Exercise of sole discretion, pursuant to
Section 2.103 of the Commission’s rules,
whether to permit Federal public safety
agency use of the public safety broadband
spectrum, with any such use subject to the
terms and conditions of the NSA.
• Responsibility for reviewing and
approving requests for early construction and
operation of local public safety broadband
networks on the 700 MHz public safety
broadband spectrum in areas with and
without a preexisting build-out commitment
in the NSA, pursuant to the procedures and
requirements outlined for such waivers as
described in 47 CFR 90.1430.
• Responsibility for reviewing and
approving requests for waiver submitted by
public safety entities to conduct wideband
operations pursuant to the procedures and
restrictions in connection with such waivers
as described in 47 CFR 90.1432.
Public Safety Network Service Fees
• The NSA must include a schedule of fees
for public safety access to broadband network
services.
• Public safety users of the D Block public
safety spectrum will be charged a base rate
of $[—.—] per user per month.
• The initial fixed rates in the NSA will
sunset at the end of the fourth year of the D
Block licensee’s license term. After the
sunset, applicable rates will be negotiated
based on fee schedules developed by the
General Services Administration for
government users of the commercial
spectrum.
Roaming Arrangement
• Each regional D Block licensee must
public safety users of all other 700 MHz
public safety regional networks with the
ability to roam on its network.
• The NSA should further specify the
relevant terms and conditions under which
roaming will be provided.
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Dispute Resolution Process
• The Commission may resolve any
impasse between the parties to the NSA,
including, should the Commission find it in
the public interest, requiring the parties to
accept specified terms resolving the dispute.
The Commission’s resolution will be final.
• In resolving any disputes between a
winning D Block bidder and the PSBL with
respect to the terms of the NSA, the
Commission will use its discretion to
determine how best to take into account the
winning D Block bidder’s business plan, as
well as the requirements of public safety
users, when mandating a resolution.
Safeguards for Protection of Public Safety
Service
• The D Block licensee must provide to the
Public Safety Broadband Licensee monthly
network usage statistics.
• The D Block licensee may not
discontinue service to public safety entities
without the Commission’s approval.
• The parties must jointly file quarterly
reports with the Commission. These reports
must include detailed information on the
areas where broadband service has been
deployed, how the specific requirements of
public safety are being met, audited financial
statements, which public safety entities (e.g.,
police, fire departments) are using the
broadband network in each area of operation;
what types of applications (e.g., voice, data,
video) are in use in each area of operation to
the extent known; and the number of
declared emergencies in each area of
operation.
Funding of the PSBL Through the D Block
Licensee
• The Public Safety Broadband Licensee
must annually create and submit for FCC
approval a budget for its administrative and
operational expenses. The Public Safety
Broadband Licensee also must have an
annual audit conducted by an external,
independent auditor. The proposed annual
budget to be submitted by the Public Safety
Broadband Licensee will provide the
Commission with an ability to ensure that the
Public Safety Broadband Licensee is acting in
a fiscally responsible manner and not
engaging in activities that exceed the scope
of its prescribed roles and responsibilities.
• The Public Safety Broadband Licensee
must submit a full financial accounting on a
quarterly basis.
• The D Block licensee must make an
annual payment to the Public Safety
Broadband Licensee of the sum total of $5
million per year in the aggregate in
consideration for the D Block licensee’s
leased access on a secondary basis to the
public safety broadband spectrum.
Æ In the event that the D Block is licensed
on a regional basis, the Commission will
specify after the close of the auction the
annual payments required for each license
won at auction, such that the total $5 million
in annual payments to the Public Safety
Broadband Licensee is apportioned on a per
region basis, based upon total pops per
region.
• The annual payment funds will be
placed into an escrow account managed by
an unaffiliated third party, such as a major
commercial financial institution, for the
benefit of the Public Safety Broadband
Licensee. The Public Safety Broadband
Licensee must seek approval of its selected
escrow account manager from the Chief,
PSHSB. The Public Safety Broadband
Licensee can draw funds on this account to
cover its annual operating and administrative
expenses in a manner consistent with its
submitted annual budget for that fiscal year.
The entirety of the Public Safety Broadband
Licensee’s annual operating budget shall be
based on these annual payments.
• To the extent that the Public Safety
Broadband Licensee’s actual operating
expenses for a given fiscal year turn out to
be less than its proposed budget, such that
there are excess funds left over at the end of
that fiscal year from the annual payment(s)
made by the D Block licensee(s) at the
beginning of that year, those excess funds
may be applied towards the Public Safety
Broadband Licensee’s funding of
administrative or operational expenses for
the following fiscal year, or to fund
secondary activities, such as the purchase of
equipment for the benefit of individual
public safety agencies.
• The Public Safety Broadband Licensee is
not permitted to: charge a separate lease fee
to the D Block licensee(s) for their use of the
public safety broadband spectrum or obtain
loans or financing from any other sources.
Technical Requirements
• Interoperability:
Æ The network or networks are required to
use the same air interface and provide voice,
video, and data capabilities that are
interoperable across agencies, jurisdictions,
and geographic areas. Interoperable means
that the technology, equipment, applications,
and frequencies employed will allow all
participating public safety entities, whether
on the same network or different regional 700
MHz public safety broadband networks, to
communicate with one another.
Æ All networks are required to support
roaming of public safety users from other
networks.
Æ Satellite Support: D Block licensees
must also ensure the availability to PS users
in their area at least one handset with an
integrated satellite solution.
• Greater Technical Requirements Can Be
Purchased: If a particular public safety
agency wishes, for example, greater
capabilities than required by the
Commission’s rules or this NSA, the Public
Safety Broadband Licensee may negotiate on
its behalf for such improvements, provided
the public safety agency provides the
requisite financing.
Appendix E
Proposed Minimum Opening Bids
NATIONWIDE LICENSE
Area
Population
Nationwide .........................................................
285,620,445
Minimum
opening bid
MHz
10
$750,000,000
REGIONAL LICENSES
Population
density/
square mile
Density
category*
$/MHz*pop
Minimum
opening bid**
190,922,140
206,375,120
126,853,300
159,823,780
139,225,170
0.45
0.30
0.45
0.30
0.30
$86,335,000
62,215,000
57,363,000
48,182,000
41,972,000
10
10
132,341,360
78,313,270
0.30
0.45
39,896,000
35,413,000
10
10
10
113,531,400
105,264,800
99,384,440
0.30
0.30
0.30
34,226,000
31,734,000
29,961,000
PSR
jlentini on PROD1PC65 with PROPOSALS2
8 .......
5 .......
54 .....
9 .......
19 .....
6 .......
20 .....
33 .....
28 .....
21 .....
Population
New York—Metropolitan .....................
California—South ................................
Chicago—Metropolitan ........................
Florida .................................................
Maine, New Hampshire, Vermont,
Massachusetts,
Rhode
Island,
Connecticut.
California—North .................................
Maryland; Washington, DC; Virginia—
Northern.
Ohio .....................................................
New Jersey, Pennsylvania, Delaware
Michigan ..............................................
19,092,214
20,637,512
12,685,330
15,982,378
13,922,517
1,940.1
365.2
741.8
296.4
221.7
A
B
A
B
B
10
10
10
10
10
13,234,136
7,831,327
133.1
648.8
B
A
11,353,140
10,526,480
9,938,444
277.3
463.1
175.0
B
B
B
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MHz
MHz*pops
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REGIONAL LICENSES—Continued
PSR
10 .....
31 .....
40 .....
39 .....
51 .....
42 .....
36 .....
14 .....
18 .....
17 .....
37 .....
30 .....
55 .....
43 .....
24 .....
3 .......
22 .....
1 .......
7 .......
53 .....
13 .....
11 .....
34 .....
35 .....
15 .....
23 .....
45 .....
16 .....
4 .......
49 .....
41 .....
27 .....
29 .....
44 .....
26 .....
50 .....
12 .....
52 .....
47 .....
25 .....
38 .....
32 .....
2 .......
46 .....
56 .....
48 .....
57 .....
58 .....
Population
Georgia ...............................................
North Carolina .....................................
Texas—Dallas .....................................
Tennessee ..........................................
Texas—Houston .................................
Virginia ................................................
Pennsylvania .......................................
Indiana ................................................
Louisiana .............................................
Kentucky .............................................
South Carolina ....................................
New York—Albany ..............................
New York—Buffalo ..............................
Washington .........................................
Missouri ...............................................
Arizona ................................................
Minnesota ............................................
Alabama ..............................................
Colorado ..............................................
Texas—San Antonio ...........................
Illinois ..................................................
Hawaii .................................................
Oklahoma ............................................
Oregon ................................................
Iowa .....................................................
Mississippi ...........................................
Wisconsin ............................................
Kansas ................................................
Arkansas .............................................
Texas—Austin .....................................
Utah .....................................................
Nevada ................................................
New Mexico ........................................
West Virginia .......................................
Nebraska .............................................
Texas—El Paso ..................................
Idaho ...................................................
Texas—Lubbock .................................
Puerto Rico .........................................
Montana ..............................................
South Dakota ......................................
North Dakota .......................................
Alaska .................................................
Wyoming .............................................
Guam and the Northern Mariana Islands.
U.S.Virgin Islands ...............................
American Samoa ................................
Gulf of Mexico .....................................
Population
density/
square mile
8,186,453
8,049,313
6,503,125
5,689,283
5,618,958
5,115,733
4,801,690
4,763,619
4,468,976
4,041,769
4,012,012
3,182,726
2,852,351
5,894,121
5,595,211
5,130,632
4,919,479
4,447,100
4,301,261
3,916,309
3,722,488
1,211,537
3,450,654
3,421,399
2,926,324
2,844,658
2,692,016
2,688,418
2,673,400
2,254,226
2,233,169
1,998,257
1,819,046
1,808,344
1,711,263
1,472,545
1,293,953
1,086,657
3,808,610
902,195
754,844
642,200
626,932
493,782
224,026
141.4
165.2
212.6
138.0
223.3
136.9
173.5
152.3
102.6
101.7
133.2
108.3
242.1
88.6
81.2
45.2
61.8
87.6
41.5
73.1
75.9
188.6
50.3
35.6
52.4
60.6
55.7
32.9
51.3
92.9
27.2
18.2
15.0
75.1
22.3
20.3
15.6
19.5
1,112.1
6.2
9.9
9.3
1.1
5.1
575.9
108,612
57,291
....................
810.5
744.0
N/A
Density
category*
MHz
MHz*pops
A
B
C
D
...
...
...
...
$/MHz*pop
density ≥ 500 ...................
100 ≤ density < 500 ........
10 ≤ density < 100 ..........
density < 10 .....................
$0.45
0.30
0.10
0.02
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* Density Category D also includes PSRs
47, 48, 56, and 57 regardless of population
density.
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10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
10
81,864,530
80,493,130
65,031,250
56,892,830
56,189,580
51,157,330
48,016,900
47,636,190
44,689,760
40,417,690
40,120,120
31,827,260
28,523,510
58,941,210
55,952,110
51,306,320
49,194,790
44,471,000
43,012,610
39,163,090
37,224,880
12,115,370
34,506,540
34,213,990
29,263,240
28,446,580
26,920,160
26,884,180
26,734,000
22,542,260
22,331,690
19,982,570
18,190,460
18,083,440
17,112,630
14,725,450
12,939,530
10,866,570
38,086,100
9,021,950
7,548,440
6,422,000
6,269,320
4,937,820
2,240,260
0.30
0.30
0.30
0.30
0.30
0.30
0.30
0.30
0.30
0.30
0.30
0.30
0.30
0.10
0.10
0.10
0.10
0.10
0.10
0.10
0.10
0.30
0.10
0.10
0.10
0.10
0.10
0.10
0.10
0.10
0.10
0.10
0.10
0.10
0.10
0.10
0.10
0.10
0.02
0.02
0.02
0.02
0.02
0.02
0.02
24,679,000
24,266,000
19,605,000
17,151,000
16,939,000
15,422,000
14,475,000
14,361,000
13,472,000
12,185,000
12,095,000
9,595,000
8,599,000
5,923,000
5,623,000
5,156,000
4,944,000
4,469,000
4,322,000
3,935,000
3,741,000
3,652,000
3,468,000
3,438,000
2,941,000
2,859,000
2,705,000
2,702,000
2,686,000
2,265,000
2,244,000
2,008,000
1,828,000
1,817,000
1,720,000
1,480,000
1,300,000
1,092,000
765,000
181,000
152,000
129,000
126,000
99,000
45,000
D
D
N/A
10
10
10
1,086,120
572,910
0
0.02
0.02
N/A
22,000
12,000
10,000
750,000,000
** The proposed minimum opening bids for
the regional licenses were calculated using the
$/MHz*pop for the corresponding density category, except as noted above. The resulting
amounts totaled nearly $750 million. These
amounts were then adjusted and rounded so
that the total of the minimum opening bids for
a set of regional licenses equals the proposed
minimum opening bid for the nationwide
license.
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Minimum
opening bid**
B
B
B
B
B
B
B
B
B
B
B
B
B
C
C
C
C
C
C
C
C
B
C
C
C
C
C
C
C
C
C
C
C
C
C
C
C
C
D
D
D
D
D
D
D
285,620,445
Density categories*
$/MHz*pop
Fmt 4701
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Appendix F
Comments and Reply Comments
List of Comments and Reply Comments In
the 700 MHz Third FNPRM (WT Docket No.
06–150 and PS Docket 06–229)
This is a list of parties who filed comments
and reply comments within the designated
comment periods in this proceeding. The
complete record in this proceeding is
available in the Electronic Comment Filing
System located at https://www.fcc.gov/cgb/
ecfs/.
Comments
700 MHz Regional Planning Committee,
Region 6 (Northern California) (RPC 6)
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Ada County Sheriff’s Office
Advanced Communications Technology, Inc.
(ACT)
Alcatel-Lucent (ALU)
American Association of State Highway and
Transportation Officials (AASHTO)
American Hospital Association (AHA)
Andrew M. Seybold (Seybold)
Association of Public-Safety
Communications Officials-International,
Inc. (APCO)
AT&T Inc. (AT&T)
Big Bend Telephone Company (Big Bend)
Bill Reimann (Reimann)
Capt V. M. Sanders (Sanders)
Carol Barta (Barta)
CDMA Development Group, Inc. (CDG)
Cellular South, Inc. (Cellular South)
Charles L. Jackson, Dorothy Robyn and
Coleman Bazelon (Jackson, Robyn,
Bazelon)
City and County of San Francisco (San
Francisco)
City of Philadelphia (Philadelphia)
Claire Nilles (Nilles)
Coleman Bazelon (Bazelon)
ComCentric Inc. (ComCentric)
Commonwealth of Virginia (Virginia)
Consumer Electronics Association (CEA)
Council Tree Communications, Inc (Council
Tree)
Coverage Co (Coverage Co)
Cox Communications, Inc. (Cox)
Craig T. Rowland (Rowland)
CTC Telcom, Inc. (CTC)
CTIA—The Wireless Association (CTIA)
David Wills (Wills)
District of Columbia (District)
Ericsson Inc (Ericsson)
Florida Region 9, Regional Planning
Committee (Region 9 RPC)
GEOCommand, Inc. (GEOCommand)
Gerard Eads (Eads)
Google Inc. (Google)
Hypres, Inc. (Hypres)
Inmarsat plc (Inmarsat)
Interisle Consulting Group (Interisle)
International Association of Fire Fighters
(IAFF)
International Municipal Signal Association,
International Association of Fire Chiefs,
Inc., Congressional Fire Services Institute,
and Forestry Conservation
Communications Association (IMSA et al.)
James Lencioni (Lencioni)
Jessica Scheeler (Scheeler)
Jon M. Peha (Peha)
Kennebec Telephone Company, Inc.
(Kennebec)
Kentucky Wireless Interoperability Executive
Committee (KWIEC)
Kevin Mann (Mann)
King County Washington Regional
Communications Board (King County)
Leap Wireless International, Inc. (Leap
Wireless)
Mayo Clinic (Mayo)
Mercatus Center at George Mason University
(Mercatus)
MetroPCS Communications, Inc. (MetroPCS)
Michael Stiles (Stiles)
Mobile Satellite Users Association (MSUA)
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(MSV)
Motorola, Inc. (Motorola)
National Association of Emergency Medical
Technicians (NAEMT)
National Association of Telecommunications
Officers and Advisors, National
Association of Counties, National League
of Cities, and U.S. Conference of Mayors
(NATOA et al.)
National Emergency Number Association
(NENA)
National Public Safety Telecommunications
Council (NPSTC)
National Regional Planning Council (NRPC)
New York City Police Department (NYPD)
Northrop Grumman Information Technology,
Inc. (Northrop Grumman)
NTCH, Inc. (NTCH)
Oregon State Interoperability Executive
Council (Oregon SIEC)
Penasco Valley Telephone Cooperative, Inc.
(PVTC)
Peter G. Cook Consultancy, Inc. (PGCC)
Phil Stalheim (Stalheim)
Pierce County Public Transportation Benefit
Area Corporation (Pierce Transit)
Ponderosa Telephone (Ponderosa)
Public Interest Spectrum Coalition (PISC)
Public Safety Spectrum Trust Corporation
(PSST)
QUALCOMM Incorporated (QUALCOMM)
Region 33 (Ohio) 700 MHz. Regional
Planning Committee (RPC 33)
Rehabilitation Engineering Research Center
for Wireless Technologies (Wireless RERC)
Rivada Networks (Rivada)
Rural Cellular Association (RCA)
Rural Telecommunications Group, Inc. (RTG)
Sandro Brusco, Giuseppe Lopomo, and Leslie
M. Marx (Brusco et al.)
Satellite Industry Association (SIA)
Senator Daniel K. Inouye (Senator Inouye)
Smithville Telephone Company, Inc.
(Smithville)
Society of Broadcast Engineers, Incorporated
(SBE)
Software Defined Radio Forum (SDR Forum)
Space Data Corporation (Space Data)
Spectrum Acquisitions Inc. (SAI)
Spring Grove Communications (Spring
Grove)
Sprint Nextel Corporation (Sprint Nextel)
State of California (California)
State of Louisiana (Louisiana)
State of Mississippi Department of Public
Safety (Mississippi)
State of Washington Military Department
(Washington)
Stagg Newman (Newman)
Telecommunications Development
Corporation (TDC)
Telecommunications Industry Association
(TIA)
Telecommunity, Charlotte, NC, Houston, TX,
& Montgomery Co., MD (Telecommunity)
Televate, LLC (Televate)
Tyco Electronics M/A–COM (TE M/A–COM)
United States Cellular Corporation (USCC)
Van Buren Telephone Company, Inc. (Van
Buren)
Verizon Wireless (Verizon)
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57851
Virginia Fire Chiefs Association, Inc. (VFCA)
Virginia Information Technologies Agency
(VITA)
Western Fire Chiefs Association (WFCA)
Wiggins Telephone Association (Wiggins)
Wirefree Partners III, LLC (Wirefree)
Xanadoo Corp. (Xanadoo)
Reply Comments
American Association of State Highway and
Transportation Officials (AASHTO)
American Petroleum Institute (API)
Association of Public-Safety
Communications Officials-International,
Inc. (APCO)
AT&T Inc. (AT&T)
City of Philadelphia (Philadelphia)
Council Tree Communications, Inc. (Council
Tree)
CTIA—The Wireless Association (CTIA)
Cyren Call Communications Corporation
(Cyren Call)
Google Inc. (Google)
Intelligent Transportation Society of America
(ITS America)
International Assn. of Chiefs of Police &
National Sheriffs’ Assn. (IACPNSA)
International City/County Management
Association (ICCMA)
International Municipal Signal Association,
International Association of Fire Chiefs,
Inc., Congressional Fire Services Institute,
and Forestry Conservation
Communications Association (IMSA et al.)
Joe Hanna (Hanna)
Leap Wireless International, Inc. (Leap
Wireless)
Maryland Broadband Cooperative (MBC)
Michael Dasso (Dasso)
Motorola, Inc. (Motorola)
National Association of Telecommunications
Officers and Advisors, National
Association of Counties, National League
of Cities, and U.S. Conference of Mayors
(NATOA et al.)
National Association of State Emergency
Medical Services Officials (NASEMSO)
National Public Safety Telecommunications
Council (NPSTC)
New York City Police Department (NYPD)
Nextwave Wireless, Inc. (Nextwave)
Northrop Grumman Information Technology,
Inc. (Northrop Grumman)
Public Safety Spectrum Trust Corporation
(PSST)
Regional Planning Committee Twenty (RPC
20)
Bill Reimann (Reimann)
Rivada Networks (Rivada)
Satellite Industry Association (SIA)
SouthernLINC Wireless (SouthernLINC)
Space Data Corporation (Space Data)
Sprint Nextel Corporation (Sprint Nextel)
Telecommunity, Charlotte, NC, Houston, TX,
& Montgomery Co., MD
Televate, LLC (Televate)
Tyco Electronics M/A–COM (TE M/A–COM)
United States Cellular Corporation (USCC)
Verizon Wireless (Verizon)
[FR Doc. E8–23045 Filed 10–2–08; 8:45 am]
BILLING CODE 6712–01–P
E:\FR\FM\03OCP2.SGM
03OCP2
]]>Agencies
[Federal Register Volume 73, Number 193 (Friday, October 3, 2008)]
[Proposed Rules]
[Pages 57750-57851]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-23045]
[[Page 57749]]
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Part III
Federal Communications Commission
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47 CFR Parts 27 and 90
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Service Rules for the 698-746, 747-762 and 777-792 MHz Bands,
Implementing a Nationwide, Broadband, Interoperable Public Safety
Network in the 700 MHz Band; Proposed Rule
Federal Register / Vol. 73, No. 193 / Friday, October 3, 2008 /
Proposed Rules
[[Page 57750]]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 27 and 90
[WT Docket No. 06-150; PS Docket No. 06-229; FCC 08-230]
Service Rules for the 698-746, 747-762 and 777-792 MHz Bands,
Implementing a Nationwide, Broadband, Interoperable Public Safety
Network in the 700 MHz Band
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Commission seeks comment on its
tentative conclusions and proposals on how the Commission might modify
its rules governing the public/private partnership, the D Block
licensee, and the public safety broadband licensee. This Third Further
Notice of Proposed Rulemaking (Third FNPRM) seeks comment on its
tentative conclusion that it should continue to mandate a public/
private partnership between the D block licensee and the public safety
broadband licensee on a number of proposals and tentative conclusions
regarding the terms and conditions for the partnership.
DATES: Written comments are due on or before November 3, 2008, and
reply comments are due on or before November 12, 2008.
ADDRESSES: You may submit comments, identified by WT Docket No. 06-150
and PS Docket No. 06-229, by any of the identified methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web site: https://
www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
Mail: Filings can be sent by hand or messenger delivery,
by commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail (although the Commission continues to experience
delays in receiving U.S. Postal Service mail). All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
People with Disabilities: Contact the Commission to
request reasonable accommodations (accessible format documents, sign
language interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone:
202-418-0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Peter Trachtenberg at (202) 418-7369,
at peter.trachtenberg@fcc.gov, Spectrum and Competition Policy
Division, Wireless Telecommunications Bureau; Jeffrey S. Cohen at (202)
418-0799, jeff.cohen@fcc.gov, Public Safety and Homeland Security
Bureau.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third
FNPRM, WT Docket No. 06-150, PS Docket No. 06-229, adopted on September
25, 2008 and released September 25, 2008. The full text of the Third
FNPRM is available for public inspection and copying during business
hours in the FCC Reference Information Center, Portals II, 445 12th
Street, SW., Room CY-A257, Washington, DC 20554. It also may be
purchased from the Commission's duplicating contractor at Portals II,
445 12th Street, SW., Room CY-B402, Washington, DC 20554; the
contractor's Web site, https://www.bcpiweb.com; or by calling (800) 378-
3160, facsimile (202) 488-5563, or e-mail FCC@BCPIWEB.com. Copies of
the public notice also may be obtained via the Commission's Electronic
Comment Filing System (ECFS) by entering the docket numbers, WT Docket
No. 06-150 and PS Docket No. 06-229. Additionally, the complete item is
available on the Federal Communications Commission's Web site at http:/
/www.fcc.gov.
Synopsis
In the Second Report and Order, 72 FR 48814, August 24, 2007, the
Commission adopted rules for the establishment of a mandatory public/
private partnership (the 700 MHz Public/Private Partnership) in the
upper portions of the 698-806 MHz band (700 MHz Band) as the means for
promoting the rapid construction and deployment of a nationwide,
interoperable broadband public safety network that would serve public
safety and homeland security needs. Specifically, the Commission
required that the winning bidder of the commercial license in the Upper
700 MHz D Block (758-763/788-793 MHz) (D Block) enter into the 700 MHz
Public/Private Partnership with the nationwide licensee of the public
safety broadband spectrum (763-768/793-798 MHz) (Public Safety
Broadband Licensee) to enable construction of this interoperable
broadband network, which would span both the commercial D Block and
public safety spectrum. In the recently concluded auction of commercial
700 MHz licenses, bidding for the D Block license did not meet the
applicable reserve price of $1.33 billion and, pursuant to the
Commission's rules, there was no winning bid for that license. In the
Second Further Notice of Proposed Rulemaking, 22 FCC Rcd 8047 (2008)
(Second FNPRM), the Commission revisited its decisions concerning the
700 MHz Public/Private Partnership, including revisions to this
partnership as well as alternative rules the Commission should adopt in
the event the D Block licensee is no longer required to enter into a
mandatory public/private partnership.
In the Third FNPRM, the Commission seeks comment on the tentative
conclusions and proposals presented in this Third FNPRM, and on whether
these proposals will lead to a successful auction and, more
importantly, a successful partnership or partnerships that will fulfill
the Commission's goal of making interoperable broadband wireless
service available to public safety entities across the nation. The
Commission tentatively concludes that it should continue to require
that the D Block licensee enter into a public/private partnership with
the Public Safety Broadband Licensee, and proposes to use competitive
bidding to resolve two critical issues: (1) The appropriate geographic
license area for the D Block, and (2) the need for a common broadband
technology platform nationwide. The Commission also proposes
significant clarifications and revisions of the parties' obligations
regarding the construction and operation of the shared wireless
broadband network as well as modifications to certain rules governing
the establishment of the Network Sharing Agreement and the licensing of
the D Block following bidding for D Block licenses. The Commission also
addresses certain additional issues related to the auction process and
the rules governing public safety users and the Public Safety Broadband
Licensee, including narrowband relocation issues. This Third FNPRM is
another step in the Commission's ongoing efforts to develop a
regulatory framework that will address current and future public safety
communications needs.
Discussion
I. Introduction
1. In this Third Further Notice of Proposed Rulemaking (Third
FNPRM), the Commission takes the next step toward achieving the goal of
a nationwide interoperable broadband wireless network for public safety
entities. The Commission previously sought to achieve this goal through
an innovative public/private partnership,
[[Page 57751]]
which required the winning bidder of the commercial license in the
Upper 700 MHz D Block (758-763/788-793 MHz) (D Block) to partner with
the nationwide licensee of the public safety broadband spectrum (763-
768/793-798 MHz) (Public Safety Broadband Licensee or PSBL) to enable
construction of an interoperable broadband network that would serve
both commercial and public safety users.\1\ Because the auction of the
D Block did not result in a winning bid, the Commission issued the
Second FNPRM revisiting the rules governing the mandatory public/
private partnership, the D Block licensee, and the Public Safety
Broadband Licensee, seeking comment broadly on how the Commission might
modify those rules to achieve the Commission goals, whether the
Commission should continue to mandate a public/private partnership
between the D Block licensee and Public Safety Broadband Licensee, and
if so, under what terms and conditions.\2\ The Commission further
indicated that, prior to adopting final rules, the Commission would
present for public comment a detailed proposal regarding specific
proposed rules to address these issues.\3\ In this Third FNPRM, the
Commission now offers and seeks comment on the following proposals and
tentative conclusions.
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\1\ See Service Rules for the 698-746, 747-762 and 777-792 MHz
Bands, WT Docket No. 06-150, Revision of the Commission's Rules to
Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC
Docket No. 94-102, Section 68.4(a) of the Commission's Rules
Governing Hearing Aid-Compatible Telephones, WT Docket No. 01-309,
Biennial Regulatory Review--Amendment of Parts 1, 22, 24, 27, and 90
to Streamline and Harmonize Various Rules Affecting Wireless Radio
Services, WT Docket 03-264, Former Nextel Communications, Inc. Upper
700 MHz Guard Band Licenses and Revisions to Part 27 of the
Commission's Rules, WT Docket No. 06-169, Implementing a Nationwide,
Broadband, Interoperable Public Safety Network in the 700 MHz Band,
PS Docket No. 06-229, Development of Operational, Technical and
Spectrum Requirements for Meeting Federal, State and Local Public
Safety Communications Requirements Through the Year 2010, WT Docket
No. 96-86, Declaratory Ruling on Reporting Requirement under
Commission's Part 1 Anti-Collusion Rule, WT Docket No. 07-166,
Second Report and Order, 22 FCC Rcd 15289 (2007) (Second Report and
Order) recon. pending.
\2\ See Service Rules for the 698-746, 747-762 and 777-792
Bands; Implementing a Nationwide, Broadband, Interoperable Public
Safety Network in the 700 MHz Band, WT Docket No. 06-150, PS Docket
No. 06-229, 22 FCC Rcd 8047 (2008) (Second FNPRM).
\3\ See id. at 8052 para. 7.
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2. As an initial matter, the Commission tentatively concludes that
it should continue to require, as a license condition, that the D Block
licensee enter into a public/private partnership with the Public Safety
Broadband Licensee for the purpose of constructing a wireless broadband
network that will operate over both D Block spectrum and public safety
broadband spectrum and provide broadband services to both commercial
users and public safety entities (shared wireless broadband
network).\4\ The Commission finds that a public/private partnership
condition on the D Block remains the best option to achieve nationwide
build-out of an interoperable broadband network for public safety
entities, given the current absence of legislative appropriations for
this purpose and the limited funding available to the public safety
sector. The Commission also proposes to retain those current rules that
will support this relationship. For example, the Commission proposes to
continue requiring the parties to enter into a Network Sharing
Agreement (NSA), and to make the NSA a condition of the grant of the D
Block license(s). The Commission also proposes, however, to clarify and
revise the rules to clearly establish the obligations of the parties to
the partnership with greater specificity and detail. These
clarifications and revisions address whether the D Block will be
licensed on a nationwide or regional basis, the obligations of the
parties regarding the construction and operation of the shared wireless
broadband network, the rules governing the process for establishing an
NSA between the parties, certain auction issues, and issues related to
public safety users and the Public Safety Broadband Licensee. The
Commission anticipates that, by establishing the rules governing the
public/private partnership in a more comprehensive and detailed
fashion, the Commission will enhance the certainty of bidders regarding
their potential obligations as D Block licensees, and facilitate the
rapid and successful negotiation of NSAs as the Commission would be
significantly reducing the scope of issues that need to be
negotiated.\5\ Equally important, the Commission seeks in its proposals
to meet the needs of the public safety community in a commercially
viable manner. With these goals in mind, the Commission makes the
following proposals.
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\4\ Under the Commission proposal, it is possible that there
will be multiple regional D Block licenses or a single nationwide D
Block license. Accordingly, references herein to ``the'' D Block
license and licensee should be understood to incorporate reference
to any of multiple D Block licenses or licensees, as appropriate.
The Commission proposed rules should be interpreted in similar
fashion.
\5\ The Commission has appended an NSA term sheet, which
provides a summary of major terms that the parties must include in
their agreement(s). See, supra, Appendix D.
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3. First, the Commission tentatively concludes that it should
resolve two critical issues through the use of competitive bidding: (1)
The appropriate geographic license area for the D Block, and (2) the
need for a common broadband technology platform nationwide. The
Commission tentatively concludes that it can resolve these issues
through competitive bidding by offering alternative sets of D Block
licenses with different license areas and broadband technology
conditions. With regard to the appropriate geographic area, the
Commission proposes to offer the D Block both as a single nationwide
license and on a regional basis, using geographic areas that the
Commission will refer to as Public Safety Regions (PSRs). PSRs would be
comprised of fifty-five regions that mirror the geographic boundaries
of the fifty-five 700 MHz Regional Planning Committee (RPC) regions,
and three additional areas (for a total of 58 PSRs) to cover the whole
country and match the geographic area of the nationwide license.\6\
With regard to the broadband technology platform, the Commission
proposes to establish rules that will ensure that a single broadband
air interface is used nationwide regardless of whether there is a
single licensee or multiple regional licensees, to ensure that public
safety users may communicate when they roam outside their home regions.
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\6\ The three additional regions will cover (1) the Gulf of
Mexico; (2) the Territory of Guam (Guam) and the Commonwealth of
Northern Mariana Islands (Northern Mariana Islands); and (3) the
Territory of American Samoa (American Samoa), and will be identical
to the current Economic Area (EA) licensing areas for those same
regions. See Appendix A.
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4. To resolve both of these issues, the Commission therefore
proposes to offer simultaneously three alternative sets of licenses
that vary by geographic license area and by conditions regarding the
technology platform that must be used by the licensee(s). Specifically,
under this proposal, the Commission would offer (1) a single license
for service nationwide with the technology platform to be determined by
the licensee; (2) a nationwide set of PSR licenses conditioned on the
use of Long Term Evolution (LTE) by the licensees; and (3) a nationwide
set of PSR licenses conditioned on the use of Worldwide
Interoperability for Microwave Access (WiMAX) by the licensees. The
Commission will then award the D Block license(s) in the set that
receives bids on licenses covering the greatest aggregate population,
subject to the requirement that the license(s) must
[[Page 57752]]
authorize service in areas covering at least half of the nation's
population. If more than one set of licenses meeting these requirements
cover the same population, the Commission will award the D Block
licenses in the set that receives the highest aggregate gross bid. The
Commission also proposes to establish auction procedures that will
encourage bidding on licenses covering as much population as possible,
including procedures to reduce minimum opening bids on unsold regional
licenses during bidding under circumstances the Commission specifically
describes below. The Commission also tentatively concludes that package
bidding on licenses in the regional sets would serve the public
interest and that it should direct the Wireless Telecommunications
Bureau to propose and implement detailed package bidding procedures
prior to bidding. The Commission tentatively concludes that this method
of assigning D Block licenses will be most likely to result in the
successful development of a nationwide interoperable broadband network
for public safety use, and provides a better means of addressing these
issues than by specifying a single geographic licensing area or
broadband technology in advance of competitive bidding. At the same
time, it will provide all interested bidders with the necessary
certainty at the time they make their bids of what conditions will be
applicable to them should their bids be successful.
5. The Commission proposes significant clarifications and revisions
of the parties' obligations regarding the construction and operation of
the shared wireless broadband network. These clarifications and
revisions address (1) the use of spectrum in the shared wireless
broadband network, including requirements regarding public safety
priority access to commercial capacity in emergencies; (2) the
technical requirements of the shared wireless broadband network; (3)
the performance requirements of the D Block licensee(s); and (4) the
respective operational roles of the D Block licensee(s) and the Public
Safety Broadband Licensee. With regard to spectrum use, the Commission
first tentatively concludes that a D Block licensee may construct and
operate its shared wireless broadband network using the entire 20
megahertz of D Block spectrum and public safety broadband spectrum as a
combined, blended resource. Under this proposal, public safety users
will still be guaranteed unconditionally preemptive access to 10
megahertz of capacity at all times, but the shared wireless broadband
network may flexibly and dynamically assign frequencies from either the
D Block or public safety spectrum to provide that capacity. Second, the
Commission proposes to revise the rules governing public safety
priority access to D Block spectrum capacity in emergencies. The
Commission proposed revisions include: (1) Specifying in detail the
circumstances that trigger public safety priority access to commercial
spectrum capacity; (2) providing that, in this context, ``priority
access'' means only that a public safety user would be assigned the
next available channel within the commercial spectrum over a commercial
user, and does not include a right to preempt any ongoing commercial
calls being carried over commercial spectrum capacity; (3) limiting the
additional capacity that must be provided to public safety users in
emergencies to a specified percentage of the D Block spectrum capacity;
(4) requiring that public safety priority access to D Block spectrum
capacity be limited to the time and geographic scope affected by the
emergency; and (5) specifying the procedures for requesting and
obtaining such access. Third, the Commission tentatively concludes that
the current rules for commercial access to public safety spectrum
should remain the same subject to the Commission's clarification
regarding blended use. Thus, the Commission proposes that commercial
users will have secondary access to public safety's 10 megahertz of
spectrum capacity subject to unconditional and immediate preemption
when the spectrum capacity is needed by public safety users. Fourth,
the Commission finds that the Commission tentative proposals regarding
spectrum use are consistent with the requirements of Section 337 of the
Communications Act, as amended.
6. With regard to the technical requirements of the network, in
addition to the Commission's proposal regarding the broadband
technology platform, it makes detailed proposals regarding (1)
interoperability and public safety roaming; (2) availability,
robustness, and hardening of the network; (3) capacity, throughput, and
quality of service; (4) security and encryption; (5) power limits,
power flux density limits, and related notification and coordination
requirements; and (6) ensuring the availability of a satellite-capable
handset.
7. With regard to the D Block license term and performance
requirements, the Commission proposes to extend the license term to
fifteen years and to adopt performance benchmarks applicable at the
fourth, tenth, and fifteenth years following the license grant date.
For the first two benchmarks, the Commission proposes to require D
Block licensees to provide signal coverage and offer service to at
least 40 percent of the population in each PSR by the end of the fourth
year, and at least 75 percent by the end of the tenth year. For the
final benchmark at the fifteenth year, the Commission proposes to adopt
a ``tiered'' approach, applying one of three different population
coverage requirements depending on the population density of the PSR:
(1) For PSRs with an average population density of less than 100 people
per square mile, the licensee would be required to provide signal
coverage and offer service to at least 90 percent of the population
within that PSR; (2) for PSRs with an average population density of at
least 100 people per square mile and less than 500 people per square
mile, the licensee would be required to provide signal coverage and
offer service to at least 94 percent of the population within that PSR;
and (3) for PSRs with an average population density of at least 500
people per square mile, the licensee would be required to provide
signal coverage and offer service to at least 98 percent of the
population within that PSR.
8. The Commission also proposes modifications to certain rules
governing the establishment of the Network Sharing Agreement and the
licensing of the D Block following bidding for D Block licenses, in
order to increase the likelihood of successful, rapid deployment of the
shared wireless broadband network. First, the Commission tentatively
proposes that it shall be able to offer any D Block license to a second
highest bidder in the event that the original winning bidder is not
assigned the license, either due to a failure to enter into an NSA or
for any reason. Second, the Commission tentatively concludes that a
winning bidder for a D Block license that is otherwise qualified will
be liable for default payments only if it chooses not to execute a
Commission-approved NSA. Thus, an otherwise-qualified winning bidder
for a D Block license will not be liable for default payments if the
lack of a Commission-approved NSA results from any other party's
failure to execute the agreement or a Commission determination that
there is no acceptable resolution to a dispute regarding terms to be
included in the agreement. Finally, given the Commission decision to
offer alternative D Block licenses by auction, the Commission
tentatively concludes that it should adopt a D Block-specific rule
regarding the amount of additional
[[Page 57753]]
payments owed by any defaulting bidder. The Commission proposes a rule
equivalent to the Commission's standard rule with respect to non-
package bidding auctions, i.e., that the Commission will provide that
the additional payment will be between 3 and 20 percent of the
applicable bid.
9. The Commission also addresses certain additional issues related
to the auction process. In particular, in order to further facilitate
applications from potentially qualified parties, the Commission
tentatively concludes that it will not restrict the eligibility to bid
of any party that may qualify to hold a D Block license and that no
reserve price beyond the minimum opening bid(s) will apply.
Furthermore, given the oversight that already applies to the D Block,
the Commission will codify an existing exception to the Commission's
designated entity eligibility rules with respect to the spectrum
capacity of D Block licenses, so that a designated entity applicant or
licensee with lease or resale (including wholesale) arrangement(s) for
more than 50% of the spectrum capacity of any D Block license will not
on that basis alone lose its eligibility for designated entity
benefits.\7\
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\7\ Because this exception does not extend to arrangements for
use of the spectrum capacity of licenses other than the D Block
license, if an applicant or licensee has an impermissible material
relationship with respect to the spectrum capacity of any other
license(s), the normal operation of the Commission's rules will
continue to render it ineligible for designated entity benefits for
the D Block license.
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10. The Commission also makes a number of tentative conclusions and
proposals with regard to the rules governing public safety users and
the Public Safety Broadband Licensee. The Commission tentatively
concludes that eligible users of the public safety broadband spectrum
capacity must be providers of ``public safety services'' as defined in
the Act.\8\ The Commission also proposes to reaffirm the Commission
prior decision to grant the Public Safety Broadband Licensee sole
discretion regarding whether to permit Federal public safety agency use
of the public safety broadband spectrum capacity. Further, the
Commission tentatively concludes not to require eligible public safety
users to subscribe to the shared broadband network.
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\8\ See 47 U.S.C. 337(f)(1).
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11. With respect to the Public Safety Broadband Licensee, the
Commission tentatively concludes that it should remain a non-profit
entity, and proposes certain restrictions on its business relationships
to avoid the potential for conflicts of interest. Specifically, the
Commission proposes that an entity serving as an advisor, agent, or
manager of the Public Safety Broadband Licensee will be ineligible to
become a D Block licensee unless such entity completely severs its
business relationship with the Public Safety Broadband Licensee no
later than thirty days following release of an oder adopting final
rules in this proceeding. Further, the Commission proposes to prohibit
advisors, agents, or managers of the Public Safety Broadband Licensee
from establishing business relationships with third party entities
having a financial interest in the decisions of the Public Safety
Broadband Licensee.
12. With respect to the mechanism of funding the Public Safety
Broadband Licensee, the Commission tentatively concludes that the
nationwide D Block licensee or, if the D Block is licensed on a
regional basis, each regional D Block licensee, will make an annual
payment to the Public Safety Broadband Licensee, which would constitute
the sole allowable source of funding for the Public Safety Broadband
Licensee's annual operating and administrative costs. The Commission
further tentatively concludes that the Public Safety Broadband Licensee
must establish an audited annual budgeting process, and must submit its
proposed annual budget to the Commission for approval. The Commission
also reserves the right to request an audit of the Public Safety
Broadband Licensee's expenses at any time. The Commission further
tentatively concludes that it should establish fixed nationwide service
fees that the D Block licensee may charge to public safety users based
on a discounted rate schedule.
13. The Commission proposes several changes to the Public Safety
Broadband Licensee's articles of incorporation and by-laws.
Specifically, the Commission proposes replacing the Public Safety
Broadband Licensee board of directors position currently held by the
National Emergency Management Association (NEMA) with the National
Regional Planning Council (NRPC). The Commission also tentatively
concludes that the positions of Chairman of the Board and Chief
Executive Officer must be filled by separate individuals; that the
Public Safety Spectrum Trust Corporation (PSST) may not hire a new
individual to fill the CEO position until the D Block licensee(s) has
made funding available to the PSST for its administrative and
operational costs; and that any individual appointed as CEO cannot have
served on the Public Safety Broadband Licensee executive committee
during the period three years prior to his or her appointment as CEO.
The Commission also tentatively concludes that the PSST board should
elect a new executive committee with proposed new conditions on term
limits, consecutive terms, and committee size. Further, the Commission
tentatively concludes that it will require three-fourths supermajority
voting on all major decisions by the board, that board meetings be open
to the public (with some exceptions), that the minutes of each board
meeting must be made publicly available (again with some exceptions),
and several other conditions. The Commission tentatively declines to
rescind the present PSST's license and reissue the license to a new
licensee.
14. In relation to narrowband relocation issues, the Commission
tentatively concludes that the Commission will extend the current
February 17, 2009 deadline for completing such relocation twelve months
from the date upon which narrowband relocation funding is made
available by the D Block licensee(s). The Commission also proposes that
the current $10 million cap on narrowband relocation costs should be
increased to $27 million. The Commission also tentatively concludes
that the existing August 30, 2007 cut-off date for narrowband
deployments outside of the consolidated narrowband spectrum should not
be changed, and propose conditions under which waiver relief may be
granted for deployment of narrowband equipment beyond that date.
15. The Commission seeks comment on all of the tentative
conclusions and proposals presented in this Third FNPRM, and on whether
these proposals will lead to a successful auction and, more
importantly, a successful partnership or partnerships that will fulfill
the Commission's goal of making interoperable broadband wireless
service available to public safety entities across the Nation.
II. Background
16. In this section, the Commission reviews the history of its
efforts to establish a public/private partnership to address the need
for nationwide interoperable public safety communications and to
promote public safety access to advanced broadband communication
systems and technologies. The Commission first describes the rules it
promulgated in the Second Report and Order, which established two
nationwide 700 MHz licenses, the Public Safety Broadband License and
the commercial D Block license, and required the licensees to
[[Page 57754]]
enter into a public/private partnership for the purpose of constructing
and operating a nationwide wireless broadband network meeting specified
terms. The Commission reviews petitions for reconsideration of the
Second Report and Order that raised issues related to this proceeding.
The Commission briefly discusses Auction 73, the auction of commercial
700 MHz licenses concluded earlier this year in which the Commission
auctioned the D Block under the public/private partnership rules but
did not receive a winning bid. Finally, the Commission summarizes the
Second FNPRM, which commenced the process of revisiting and
reconsidering the public/private partnership rules that the Commission
continues now in the present Third FNPRM.
A. 700 MHz Second Report and Order
17. The commercial and public safety spectrum bands at issue in
this proceeding are part of the 700 MHz Band (698-806 MHz), which is
currently occupied by television broadcasters, but which must be
cleared of such transmissions and made available for wireless services
by February 17, 2009, as part of the digital television (DTV)
transition.\9\ Pursuant to Congress's direction in the Balanced Budget
Act of 1997 (Balanced Budget Act), codified at section 337(a) of the
Act, the Commission has allocated, in the Upper 700 MHz Band (746-806
MHz), 24 megahertz of spectrum for public safety services and 36
megahertz for commercial services.\10\
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\9\ See Deficit Reduction Act of 2005, Public Law No. 109-171,
120 Stat. 4 (2006).
\10\ See Balanced Budget Act of 1997, Public Law No. 105-33, 111
Stat. 251 sec. 3004 (1997) (adding new sec. 337 of the
Communications Act); Reallocation of Television Channels 60-69, the
746-806 MHz Band, ET Docket No. 97-157, Report and Order, 12 FCC Rcd
22953, 22955 para. 5 (1998), recon. 13 FCC Rcd 21578 (1998) (Upper
700 MHz Reallocation Order).
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18. In the Second Report and Order, the Commission established,
among other rules regarding the 700 MHz Band, rules for the 700 MHz
public safety spectrum and one block of the Upper 700 MHz commercial
spectrum that would promote the creation of a nationwide, interoperable
broadband public safety network. With regard to the public safety
spectrum, the Commission designated the lower half of the spectrum (the
763-768 MHz and 793-798 MHz bands) for public safety broadband
communications, and consolidated existing narrowband allocations,
previously located in both the lower and upper ends of the public
safety spectrum, in the upper half of the spectrum (the 769-775 MHz and
799-805 MHz bands) exclusively.\11\ The Commission also created a
single nationwide license for the public safety broadband spectrum, the
Public Safety Broadband License, and the Commission specified the
criteria, selection process, and responsibilities of the licensee
assigned this spectrum, including a requirement that the licensee must
be a non-profit organization.\12\
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\11\ See Second Report and Order, 22 FCC Rcd at 15406 para. 322.
The Commission also created an internal guard band in the 768-769
MHz and 798-799 MHz bands located between the broadband and
narrowband allocations. Id.
\12\ See Second Report and Order, 22 FCC Rcd at 15406 para. 322.
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19. With regard to the commercial spectrum in the 700 MHz Band, and
as described in greater detail below, the Commission created a
nationwide license in the D Block (the 758-763 MHz and 788-793 MHz
bands, located adjacent to the public safety broadband spectrum), and
required the D Block licensee, working with the Public Safety Broadband
Licensee in a public/private partnership (the 700 MHz Public/Private
Partnership) and using the spectrum associated with both licenses, to
construct and operate a nationwide network that would be shared by
commercial and public safety users.\13\
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\13\ Id. at 15428 para. 386.
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20. 700 MHz Public/Private Partnership. The Commission mandated the
700 MHz Public/Private Partnership between two nationwide licensees to
promote the rapid deployment of a nationwide, interoperable, broadband
public safety network that was robust, cost effective, spectrally
efficient, and based on a flexible IP-based, modern architecture.\14\
The Commission found that nationwide licensing would best serve these
goals by centralizing the responsibilities for implementing and
administering a broadband network across the entire country, creating
economies of scale, and avoiding a fragmented approach to network
construction. The Commission further determined that the public/private
partnership, by promoting commercial investment in the build-out of a
shared network infrastructure for both commercial and public safety
users, would address ``the most significant obstacle to constructing a
public safety network--the limited availability of public funding.''
\15\ The Commission concluded that providing for a shared
infrastructure using the D Block and the public safety broadband
spectrum would help achieve significant cost efficiencies. The
Commission noted that this would allow public safety agencies ``to take
advantage of commercial, off-the-shelf technology and otherwise benefit
from commercial carriers' investments in research and development of
advanced wireless technologies.'' \16\ The Commission stated that this
approach would also benefit the public safety community by providing it
with access to an additional 10 megahertz of broadband spectrum during
emergencies.\17\ Most importantly, the Commission anticipated that this
particular public/private partnership approach would provide all of
these public safety benefits on a nationwide basis.\18\ The Commission
noted that the 700 MHz Public/Private Partnership would also provide
the D Block licensee with benefits, including the right to operate
commercial services in the 10 megahertz of public safety broadband
spectrum on a secondary, preemptible basis, which would both help to
defray the costs of build-out and ensure that the spectrum is used
efficiently.\19\
---------------------------------------------------------------------------
\14\ Id. at 15420 para. 369, 15431 para. 396. See also
Implementing a Nationwide, Broadband, Interoperable Public Safety
Network in the 700 MHz Band, Development of Operational, Technical
and Spectrum Requirements for Meeting Federal, State and Local
Public Safety Communications Requirements Through the Year 2010, PS
Docket No. 06-229, WT Docket No. 96-86, Ninth Notice of Proposed
Rulemaking, 21 FCC Rcd 14837, 14842-43 (2006) (700 MHz Public Safety
Ninth Notice).
\15\ Second Report and Order, 22 FCC Rcd at 15431 para. 396.
\16\ Id.
\17\ Id.
\18\ Id.
\19\ Id.
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21. To ensure that the 700 MHz Public/Private Partnership would
serve the needs of the public safety community and to address concerns
about its success, the Commission specified certain mandatory features.
First, the Commission specified requirements regarding the shared
network to be constructed and the timing for that construction. In
particular, the Commission established certain technical requirements
for the shared network, including requirements relating to the network
technology platform, signal coverage, robustness and reliability,
capacity, security, operational capabilities and control, and certain
equipment specifications.\20\ With regard to the spectrum shared by the
common network, the Commission required that the Public Safety
Broadband Licensee lease the public safety broadband spectrum for
commercial use by the D Block licensee on a secondary, preemptible
basis, and that the public safety entities have priority access to the
D Block spectrum
[[Page 57755]]
during emergencies.\21\ To ensure timely construction and nationwide
coverage, the Commission specified performance requirements, including
three population-based build-out benchmarks requiring the D Block
licensee to provide signal coverage and offer service to (1) at least
75 percent of the population of the nationwide D Block license area by
the end of the fourth year after the DTV transition date, (2) at least
95 percent of the population of the nationwide license area by the end
of the seventh year, and (3) at least 99.3 percent of the population of
the nationwide license area by the end of the tenth year.\22\
---------------------------------------------------------------------------
\20\ Id. at 15433-34 para. 405.
\21\ Id. at 15432 para. 399, 15434-43 paras. 407-31.
\22\ Id. at 15432 para. 399, 15433-44 paras. 403-06, 15443-46
paras. 432-43.
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22. Next, while finding it appropriate to establish these mandatory
terms, the Commission also concluded that many details of the 700 MHz
Public/Private Partnership should be left to the parties to
negotiate.\23\ Accordingly, the Commission established that the terms
of the 700 MHz Public/Private Partnership would be governed both by
Commission rules and by a Network Sharing Agreement (NSA) between the
winning bidder for the D Block license and the Public Safety Broadband
Licensee.\24\ The Commission further provided rules governing the
process by which the parties would establish the NSA, requiring among
other things that negotiations begin by a date certain and conclude
within six months, and providing that the D Block license application
would not be granted until the parties obtained Commission approval of
the agreement, executed the approved agreement, and then filed it with
the Commission.\25\ The Commission further specified rules to govern in
the event of a negotiation dispute. Specifically, the Commission
provided that if, at the end of the six month negotiation period, or on
their own motion at any time, the Chiefs of the Public Safety and
Homeland Security Bureau (PSHSB) and the Wireless Telecommunications
Bureau (WTB) found that negotiations had reached an impasse, they could
take actions including but not limited to issuing a decision on the
disputed issues and requiring the submission of a draft agreement
consistent with their decision.\26\ The Commission also provided that
if the D Block winning bidder failed to comply with the procedures the
Commission established for negotiation or dispute resolution, failed to
receive final Commission approval of an NSA, or failed to execute an
approved NSA, it would be deemed to have defaulted on its license and
would be subject to the default payments required by Section 1.2109 of
the Commission rules.\27\
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\23\ Id. at 15488 para. 447.
\24\ Id. at 15432 paras. 399-400, 15447-49 paras. 444-54.
\25\ Id. at 15448 para. 447.
\26\ Id. at 15465 para. 508.
\27\ Id. at 15466 para. 511.
---------------------------------------------------------------------------
23. The Commission also established a number of measures to
safeguard the interests of public safety on an ongoing basis after the
NSA is executed. These measures included: (1) Requirements related to
the organization and structure of the 700 MHz Public/Private
Partnership, intended to protect the D Block license and network assets
from being drawn into a bankruptcy proceeding; (2) a prohibition on
discontinuance of service provided to public safety entities; (3)
special remedies in the event that the D Block licensee or Public
Safety Broadband Licensee fails to comply with either the Commission's
rules or the terms of the NSA; (4) a special, exclusive process for
resolving any disputes related to the execution of the terms of the
NSA; and (5) ongoing reporting obligations.\28\
---------------------------------------------------------------------------
\28\ Id. at 15466-71 para. 513-30.
---------------------------------------------------------------------------
24. Reserve Price for the Auction of the D Block. In the Second
Report and Order, the Commission also concluded that block-specific
aggregate reserve prices should be established for each commercial
license block--the A, B, C, D, and E Blocks--to be auctioned in Auction
73, and directed WTB to adopt and publicly disclose those reserve
prices prior to the auction, pursuant to its existing delegated
authority and consistent with the Commission directions.\29\ For the D
Block, the Commission concluded that WTB should consider certain
factors in setting the D Block reserve price, including the 700 MHz
Public/Private Partnership conditions, which might suggest a reserve
price of $1.33 billion. The Commission provided that, in the event that
bids for the D Block license did not meet the reserve price, the
Commission would leave open the possibility of offering the license on
the same terms or re-evaluating the D Block license conditions.\30\
---------------------------------------------------------------------------
\29\ See id. at 15400 para. 301.
\30\ See id. at 15404 para. 314.
---------------------------------------------------------------------------
25. Narrowband Relocation. As discussed above, to promote public
safety access to a nationwide, interoperable broadband network, the
Commission designated the lower half of the public safety spectrum for
public safety broadband communications, and consolidated existing
narrowband allocations, previously located in both the lower and upper
ends of the public safety spectrum, in the upper half of the
spectrum.\31\ The Commission also shifted the entire public safety band
down one megahertz, so that it would be immediately adjacent to the D
Block spectrum, to further facilitate the development of a shared
wireless broadband network over both D Block and public safety
broadband spectrum.\32\ Both the 1-megahertz shift and the narrowband
consolidation, however, left certain existing public safety narrowband
operations outside of the spectrum now designated for narrowband
services.
---------------------------------------------------------------------------
\31\ See id. at 15406 para. 322. The Commission also created an
internal guard band in the 768-769 MHz and 798-799 MHz bands located
between the broadband and narrowband allocations. Id.
\32\ See id. at 15333 para. 111.
---------------------------------------------------------------------------
26. The Commission provided in the Second Report and Order that all
700 MHz narrowband public safety operations outside of the newly
consolidated narrowband spectrum must be relocated to that spectrum no
later than the DTV transition date.\33\ To effectuate the consolidation
of the narrowband channels, the Commission required the D Block
licensee to pay the costs of relocating narrowband radios and capped
the disbursement amount for such relocation costs at $10 million.\34\
The Commission also cautioned that any narrowband equipment deployed in
the 764-770 MHz and 794-800 MHz bands (channels 63 and 68), or in the
775-776 MHz and 805-806 MHz bands (the upper one megahertz of channels
64 and 69), more than 30 days following the adoption date of the Second
Report and Order would be ineligible for relocation funding.\35\ In
addition, the Commission prohibited authorization of any new narrowband
operations in that spectrum, as of 30 days following the adoption date
of the Second Report and Order.\36\ Subsequent to the release of the
Second Report and Order, the Commission granted limited waivers to two
parties that permitted them to continue to deploy new narrowband
operations outside the consolidated narrowband spectrum after August
30, 2007.\37\ The Commission deferred
[[Page 57756]]
decision on other issues raised by their requests, however, including
the appropriate duration of the relief and whether the parties would be
entitled to reimbursement for the costs of relocating narrowband
operations deployed after August 30, 2007.
---------------------------------------------------------------------------
\33\ Id. at 15410 para. 332.
\34\ Id. at 15412 para. 341.
\35\ Id. at 15412 para. 339.
\36\ Id.
\37\ See Implementation of a Nationwide, Broadband,
Interoperable Public Safety Network in the 700 MHz Band; Development
of Operational, Technical and Spectrum Requirements for Meeting
Federal, State and Local Public Safety Communications Requirements
Through the Year 2010, PS Docket No. 06-229, WT Docket No. 96-86,
Order, 22 FCC Rcd 20290 (2007); Implementing a Nationwide,
Broadband, Interoperable Public Safety Network in the 700 MHz Band;
Development of Operational, Technical and Spectrum Requirements for
Meeting Federal, State and Local Public Safety Communications
Requirements Through the Year 2010; Request for Waiver of Pierce
Transit, PS Docket No. 06-229, WT Docket No. 96-86, Order, 23 FCC
Rcd 433 (PSHSB 2008).
---------------------------------------------------------------------------
B. Petitions for Reconsideration
27. Ten parties filed petitions for reconsideration seeking review
of various aspects of the Second Report and Order.\38\ Three of the
petitions sought reconsideration of the rules governing the 700 MHz
Public/Private Partnership specifically.\39\ All three of these
petitioners argued that the application of the default payment rules to
the D Block winner in the event of a failure to establish an NSA should
be modified, for example, by imposing such payment obligations only if
the D Block winner is found to have negotiated in bad faith.\40\ One
petitioner also argued that network requirements should be specified
more precisely for potential bidders prior to auction.\41\ Conversely,
another of these petitioners argued that, in some respects, the
technical requirements in the rules were too specific, and that the
Commission should ``not prematurely rule on specific technical issues,
[and] should instead allow the [Public Safety Broadband Licensee] and D
Block winner to develop those details as they negotiate the NSA * * *
.'' \42\
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\38\ AT&T Inc. Petition for Reconsideration and Clarification,
WT Docket No. 06-150; PS Docket No. 06-229 (filed Sept. 24, 2007)
(AT&T Petition for Reconsideration); Blooston Rural Carriers
Petition for Partial Reconsideration and/or Clarification, WT Docket
No. 06-150; PS Docket No. 06-229 (filed Sept. 24, 2007) (Blooston
Petition for Reconsideration); Petition for Reconsideration of the
Ad Hoc Public Interest Spectrum Coalition, WT Docket No. 06-150; PS
Docket No. 06-229 (filed Sept. 24, 2007) (PISC Petition for
Reconsideration); Cyren Call Communications Corporation Petition for
Reconsideration and for Clarification, WT Docket No. 06-150; PS
Docket No. 06-229 (filed Sept. 24, 2007) (Cyren Call Petition for
Reconsideration); Frontline Wireless, LLC Petition for
Reconsideration (filed Sept. 24, 2007); Pierce Transit Petition for
Reconsideration, WT Docket No. 06-150; PS Docket No. 06-229 (filed
Sept. 24, 2007) (Pierce Transit Petition for Reconsideration); Rural
Telecommunications Group, Inc. Petition for Reconsideration, WT
Docket No. 06-150; PS Docket No. 06-229 (filed Sept. 24, 2007) (RTG
Petition for Reconsideration); Commonwealth of Virginia Petition for
Reconsideration, WT Docket No. 06-150; PS Docket No. 06-229 (filed
Sept. 24, 2007) (Virginia Petition for Reconsideration); NTCH, Inc.
Petition for Partial Reconsideration, WT Docket No. 06-150; PS
Docket No. 06-229 (filed Sept. 21, 2007) (NTCH Petition for
Reconsideration); MetroPCS Communications, Inc. Petition for
Clarification and Reconsideration, WT Docket No. 06-150; PS Docket
No. 06-229 (filed Sept. 20, 2007) (MetroPCS Petition for
Reconsideration).
\39\ See AT&T Petition for Reconsideration; Cyren Call Petition
for Reconsideration; Frontline Petition for Reconsideration. The
Frontline September 20, 2007 Request also seeks changes to the rules
governing the 700 MHz Public/Private Partnership. See Request to
Further Safeguard Public Safety Service by Frontline Wireless, WT
Docket No. 06-150 (filed Sept. 20, 2007) (Frontline September 20,
2007 Request).
\40\ See AT&T Petition for Reconsideration at 7-9; Cyren Call
Petition for Reconsideration at 5-7; Frontline Petition for
Reconsideration at 23-25.
\41\ See AT&T Petition for Reconsideration at 5.
\42\ See Frontline Petition for Reconsideration at 22. See also
Cyren Call Petition for Reconsideration at 7.
---------------------------------------------------------------------------
28. Two of the ten petitioners sought reconsideration of the
aggregate reserve prices set for the commercial license blocks,
including the reserve price for the D Block.\43\ These petitioners
presented related arguments in the pre-auction process.\44\ After
considering the arguments, WTB established reserve prices consistent
with the direction of the Second Report and Order, including setting a
$1.33 billion reserve price for the D Block.\45\
---------------------------------------------------------------------------
\43\ See, generally, Frontline Petition for Reconsideration;
MetroPCS Petition for Reconsideration.
\44\ See Auction of 700 MHz Band Licenses Scheduled for January
24, 2008; Notice and Filing Requirements, Minimum Opening Bids, and
other Procedures for Auctions 73 and 76, Public Notice, 22 FCC Rcd
18141, 18194-95 paras. 197-90 (2007) (Auction 73/76 Procedures
Public Notice).
\45\ See id. at 18193-96 paras. 194-200.
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29. Finally, two other parties filed petitions seeking
reconsideration of some or all of the requirements regarding public
safety narrowband relocation, as well as requests for waiver of some of
these requirements.\46\ The requests for waiver have since been granted
in part.\47\ The two petitions, however, together with the other
petitions seeking reconsideration of the Second Report and Order,
remain pending.
---------------------------------------------------------------------------
\46\ See Virginia Petition for Reconsideration; Pierce Transit
Petition for Reconsideration.
\47\ See Implementation of a Nationwide, Broadband,
Interoperable Public Safety Network in the 700 MHz Band; Development
of Operational, Technical and Spectrum Requirements for Meeting
Federal, State and Local Public Safety Communications Requirements
Through the Year 2010, PS Docket No. 06-229, WT Docket No. 96-86,
Order, 22 FCC Rcd 20290 (2007); Implementing a Nationwide,
Broadband, Interoperable Public Safety Network in the 700 MHz Band;
Development of Operational, Technical and Spectrum Requirements for
Meeting Federal, State and Local Public Safety Communications
Requirements Through the Year 2010; Request for Waiver of Pierce
Transit, PS Docket No. 06-229, WT Docket No. 96-86, Order, 23 FCC
Rcd 433 (PSHSB 2008).
---------------------------------------------------------------------------
C. Auction 73
30. Results of the Auction. The auction of the D Block and other
700 MHz Band licenses, designated Auction 73, commenced on January 24,
2008, and closed on March 18, 2008.\48\ While the bids for licenses
associated with the other 700 MHz Band blocks offered at Auction 73
(the A, B, C, and E Blocks) exceeded the applicable aggregate reserve
prices for those blocks, the nationwide D Block license received only a
single bid that did not meet its reserve price of $1.33 billion and
thus did not become a winning bid.\49\ On March 20, 2008, the
Commission determined that the Commission would not proceed immediately
to re-auction the D Block license in order to provide us additional
time to consider the Commission options.\50\
---------------------------------------------------------------------------
\48\ See Auction 73, 700 MHz Band, at https://wireless.fcc.gov/
auctions/default.htm?job=auction_summary&id=73.
\49\ See id.; see also Auction of 700 MHz Band Licenses Closes,
Public Notice, DA 08-595 (rel. Mar. 20, 2008) (700 MHz Auction
Closing Public Notice). https://wireless.fcc.gov/auctions/
default.htm?job=auction_summary&id=73. Specifically, a bid of $472
million was entered by Qualcomm in Round 1 of the auction.
\50\ See Auction of the D Block License in the 758-763 and 788-
793 Bands, AU Docket No. 07-157, Order, 23 FCC Rcd 5421, para. 5
(2008) (D Block Post-Auction Order).
---------------------------------------------------------------------------
31. Inspector General's Report. On April 25, 2008, the Office of
Inspector General (OIG) issued a report on its investigation of
allegations that certain statements made by an advisor to the Public
Safety Broadband Licensee to potential bidders for the D Block license
in Auction 73, particularly those regarding the spectrum lease payments
that the Public Safety Broadband Licensee would request from the D
Block licensee for use of public safety spectrum, had the effect of
deterring various companies from bidding on the D Block.\51\ The OIG
determined that the statements in question were ``not the only factor
in the companies' decision not to bid on the D Block.'' Rather, it
concluded that ``the uncertainties and risks associated with the D
Block, including, but not limited to, the negotiation framework with
[the Public Safety Broadband Licensee], the potential for default
payment if negotiations failed, and the costs of the build-out and the
operations of the network, taken together, deterred each of the
companies from bidding on the D Block.'' \52\
---------------------------------------------------------------------------
\51\ See Office of Inspector General Report, from Kent R.
Nilsson, Inspector General, to Chairman Kevin J. Martin (OIG rel.
Apr. 25, 2008) (OIG Report).
\52\ OIG Report at 2.
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D. Second Further Notice of Proposed Rulemaking
32. On May 14, 2008, to begin the process of reconsidering the
appropriate rules for the D Block and the Public
[[Page 57757]]
Safety Broadband License, the Commission released the Second Further
Notice of Proposed Rulemaking (Second FNPRM). In the Second FNPRM, the
Commission enumerated the following goals and principles for this
rulemaking proceeding:
To facilitate public safety access to a nationwide,
interoperable broadband network in a timely manner;
To identify concerns in the existing structure of the 700
MHz Public/Private Partnership to inform the Commission decision making
going forward;
To promote wireless innovation and broadband network
penetration while meeting the communications needs of the first
responder community in a commercially viable manner;
To identify funding opportunities for the public safety
community to realize the promise of a broadband communications
infrastructure with a nationwide level of interoperability; and
To maximize the commercial and public safety benefits of
the D Block spectrum.\53\
---------------------------------------------------------------------------
\53\ See Second FNPRM, 23 FCC Rcd at 8052 para. 6.
---------------------------------------------------------------------------
33. With these goals and principles in mind, the Commission sought
comment first on whether and how to clarify or revise the rules
governing the public safety component of the 700 MHz Public/Private
Partnership, including rules governing the Public Safety Broadband
Licensee, the entities eligible to obtain access to the public safety
broadband network,\54\ and the relocation of public safety narrowband
operations.
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\54\ See id. at 8058-8062 paras. 24-32. The term ``public safety
broadband network,'' which the Commission has used in the Second
FNPRM and again in this Third FNPRM, refers to those functions and
services of the shared network to which the Public Safety Broadband
Licensee will administer access.
---------------------------------------------------------------------------
34. With regard to the Public Safety Broadband Licensee, the
Commission sought comment on (1) whether to revise or clarify the
structure and criteria of the Public Safety Broadband Licensee as
adopted in the Second Report and Order, including whether to clarify
the requirement that the Public Safety Broadband Licensee must be a
non-profit organization; \55\ (2) how the Public Safety Broadband
Licensee should be funded; \56\ (3) whether to adopt additional
measures to better enable Commission or Congressional oversight of the
Public Safety Broadband Licensee's activities; \57\ and (4) whether, in
light of these and other possible changes, the Commission should
rescind the current Public Safety Broadband License and seek new
applicants.\58\
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\55\ See id. at 8064 para. 40, 8067 para. 48.
\56\ See id. at 8065-8065 paras. 42-45
\57\ See id. at 8067 para. 48, 8068 para. 51.
\58\ See id. at 8068 para. 53.
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35. Regarding access to the public safety broadband network, the
Commission sought comment on (1) whether to clarify which entities are
eligible to use the public safety broadband network; (2) whether to
adopt measures requiring or promoting use of the public safety
broadband network by eligible public safety entities; \59\ (3) whether
State governments should have a role in coordinating the participation
of public safety entities in the public safety broadband network; \60\
and (4) whether to revise the rules regarding use of the public safety
broadband network by Federal public safety agencies.\61\
---------------------------------------------------------------------------
\59\ See id. at 8063 para. 37.
\60\ See id. at 8068 para. 52.
\61\ See id. at 8092-93 para. 126.
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36. With regard to the relocation of public safety narrowband
operations, the Commission sought comment on issues including (1)
whether to revise or eliminate the cap on relocation expenses; (2)
whether, in light of the proposed re-auction of the D Block and
associated timing issues, the Commission should continue to require
relocation to be completed by the DTV transition date; (3) whether to
amend the process for accomplishing the relocation; and (4) whether the
Commission should extend the August 30, 2007 cut-off date for new
narrowband deployments outside the consolidated narrowband
spectrum.\62\
---------------------------------------------------------------------------
\62\ See id. at 8111 paras. 180-182.
---------------------------------------------------------------------------
37. Turning to the 700 MHz Public/Private Partnership, the
Commission asked, as a central matter, whether the Commission should
continue to require the D Block licensee and the Public Safety
Broadband Licensee to enter into a 700 MHz Public/Private
Partnership.\63\ The Commission further sought comment on a broad set
of possible revisions to the 700 MHz Public/Private Partnership in the
event the Commission continued that requirement, and on which changes
would best serve the goal of making a broadband, interoperable network
available on a nationwide basis to public safety entities.\64\
---------------------------------------------------------------------------
\63\ See id. at 8069 para. 54.
\64\ See id. at 8069 para. 54, 8
